The Volokh Conspiracy

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

The Volokh Conspiracy

Justice John Marshall Harlan and Birth Tourism

Justice Harlan provides a middle ground for the Supreme Court on the question of birthright citizenship.

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One of the more unexpected aspects of the Birthright Citizenship case was the return of Justice John Marshall Harlan. But I think a more careful study of Harlan's lectures suggests that at least part of Trump's order may survive: specifically, the status of children whose mother is in the United States on a tourist or other limited visa. I discuss this question in a new Civitas Outlook essay. Here is the introduction:

The conventional wisdom is that the Supreme Court will strike down President Trump's entire birthright citizenship order. In 2018, I wrote that children of illegal aliens are citizens at birth. I'll admit that recent scholarship has made this question much closer than I had realized, but on balance, Trump's order should not stand for the children of illegal aliens who are domiciled in the United States. The analysis, however, differs for the second part of Trump's order, which applies to children of mothers on tourist or other temporary visas. And for authority, the Supreme Court can rely on an unexpected source who came up at oral argument: Justice John Marshall Harlan.

In a 1898 constitutional law lecture, which I analyzed more than a decade ago, Justice Harlan told his students that the children of tourists, "who cannot under the law become naturalized in the United States," would not be birthright citizens. During oral argument at the Supreme Court, Justice Neil Gorsuch and counsel for the ACLU dismissed Harlan's views because he dissented in the landmark case of United States v. Wong Kim Ark. But that decision did not set a binding precedent on the status of temporary sojourners. More importantly, the views of the Great Dissenter, whose dissents were often vindicated by history, should not be dismissed so casually. If Harlan was right, then the Supreme Court could split the difference on Trump's order: the children of illegal aliens who intend to stay in the United States would retain birthright citizenship, but pregnant women could no longer come to the United States on temporary visas for the purpose of giving birth to citizens.

Wong Kim Ark certainly addressed the issue of birth to a tourist, but I do not think a holding was set on that question. If so, the value of Wong Kim Ark is persuasive, and not binding. Here, the Harlan dissent should warrant a closer look. After all, Harlan's other dissents have come to be vindicated:

The Fourteenth Amendment was ratified in 1868. Wong Kim Ark, which was decided three decades later, should not be seen as a clear reflection of the original public meaning of the Fourteenth Amendment. The justices in the majority and dissent, who all lived through the ratification of the Reconstruction Amendments, vigorously disagreed on that original meaning. The value of Wong Kim Ark lies in its status as a judicial decision. Wong Kim Ark set a precedent about the status of children born to aliens who are domiciled in the United States, but there is no similar holding about temporary sojourners who do not intend to stay in the United States. 

Where there is not a binding precedent about the original meaning of the Fourteenth Amendment, I would line up behind Harlan over other members of the Court from the late nineteenth century. Consider Harlan's track record. In 1896, the Supreme Court decided the notorious case of Plessy v. Ferguson by an 8-1 vote. The majority established the so-called "separate but equal" doctrine, which approved the Jim Crow regime. Justice Harlan was the only member who recognized that separate cannot be equal. Five members of the Wong Kim Ark majority also joined the Plessy majority. Harlan's dissents would also be vindicated in other landmark cases. In The Civil Rights Cases (1883), Harlan recognized that Congress had the power to eradicate the vestiges of slavery. In Pollock v. Farmers' Loan & Trust Co. (1895), Harlan found that the federal income tax was constitutional. In United States v. E.C. Knight (1895), Harlan found that Congress could regulate manufacturing as a form of commerce. In Lochner v. New York (1905), Justice Harlan upheld a law regulating bakers' hours. And I could go on. The track record for Justice Horace Gray pales in comparison.

Very little of the briefing focused on the birth tourism issue, so Harlan's lecture notes warrant a closer look.

Free Speech

"[Anti-Harassment] Injunctions Are Not a Remedy for Interpersonal Conflict"

So reasons a Florida appellate court, though other courts in other states seem to take a different view.

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From Carvajal v. Ferretti, decided yesterday by the Florida Court of Appeal, in an opinion by Justice Mark Klingensmith, joined by Justices Shannon Shaw and Johnathan Lott:

Wife and her husband separated in 2021 and initiated divorce proceedings in 2022. Girlfriend began a relationship with the husband in 2019, prior to the dissolution proceedings.

In October 2024, Wife filed a petition for an injunction for protection against stalking, alleging four categories of conduct occurring between August 2023 and October 2024:

  1. August 2023 social media post: Girlfriend accused Wife of manipulating others, using her child to spy, and included language Wife perceived as threatening.
  2. February 2024 social media post: Girlfriend again accused Wife of stalking behavior, tagged Wife's workplace, and warned others about her. Wife testified this led to a meeting with her employer.
  3. October 16, 2024 text message: Girlfriend contacted Wife regarding a child support payment being sent via Zelle and requested identifying information. Wife provided the information and confirmed receipt through a court-approved communication application.
  4. October 23, 2024 communications: Following an incident involving Wife's cousin, Girlfriend sent Wife a series of messages calling her derogatory names, accusing her of stalking, and telling her to stay away. When Wife blocked her number, Girlfriend resent the same messages via WhatsApp and email within minutes and referenced possibly appearing at Wife's workplace….

The trial court found the statutory requirements satisfied and entered a three-year injunction prohibiting Girlfriend from contacting Wife….

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Waylay Callais!

Some preliminary thoughts.

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After much anticipation, the Supreme Court finally decided Louisiana v. Callais. (The Chief Justice pronounced it as waylay.) I have some preliminary thoughts.

First, more than five months elapsed from the oral argument in October till decision day. The longer this case dragged on, the harder it would be for Republican legislatures to redistrict. There was some speculation that the dissenters were dragging out the case to run out the clock. Are these insinuations accurate? Justice Alito's majority opinion in somewhat unusual in that it barely engages with the dissent. There are a few paragraphs on the penultimate page of the opinion that address the dissent. This isn't the sort of drafting process that required many opinions going back-and-forth for revisions. Moreover, there were no concurrences. The majority opinion had six clean votes. Indeed, I suspect Justice Alito circulated this draft shortly after conference. And I can't imagine there was much disagreement between Justices Kagan, Sotomayor, and Jackson. Is five months an unusually long period of time for a 90-page decision when the majority doesn't respond to the dissent? Not usually, but where there is an incentive on one side to go quick, the other side may not have been in a hurry. (I will leave aside the claim in Molly Hemmingway's new book that the Dobbs dissenters refused to expedited the release of the opinion after the leak.) Let's wait to see what the leaks reveal.

Second, I think back to Allen v. Milligan, which was decided a few weeks before SFFA. At the time, there was speculation that Chief Justice Roberts and Justice Kavanaugh (mostly) ruled against Alabama to soften the blow of (largely) ending affirmative action. Barely three years later, the Court relies on SFFA to (arguably) scale back Milligan. On the surface at least, there is no daylight between Justice Alito and the Chief Justice. Then again, it may have been Roberts's preference to not invalidate Section 2, to at least maintain the fiction of stare decisis. Remember, the Chief Justice knows to the decimal point what percentage of cases overrule precedents.

Third, this decision eliminates the Voting Rights Act asymmetry. Democrats will lose their bonus in conservative states. For the 2026 midterms, it is not clear how much of an impact this ruling will have. But in the long run, especially after the 2030 census, Callais will be significant. Still, I think it is shortsighted to think that political dynamics will not change. For the first time in generations, black and hispanic voters will live in districts where the winner is not preordained. Callais may shift how politicians on both sides of the aisle appeal to a demographic that historically has been neglected. Minority voters may even strategically vote in republican primaries to affect narrow races. As I often say, ignore all predictions that the sky will fall after a Supreme Court decision. Institutions can adapt to changed circumstances.

Edited Version of Louisiana v. Callais

For the 2026 Barnett/Blackman supplement.

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I've finished reviewing the Supreme Court's 92-page decision in Louisiana v. Callais (rhymes with waylay). I've distilled it down to about 16 pages for the 2026 Barnett/Blackman supplement. My focus here was on the ConLaw aspects of the case, so much of the history of Section 2, the 1982 amendments, and Gingles is trimmed. I also did not include the lengthy and complicated procedural posture. I'm not sure that it will matter too much as the Court found the application of the "updated" standard to be easy.

I'll have more to say about the case in another post.

Free Speech

Free Speech Unmuted: "Defamacast" and More: How American Defamation Law Works

Jane and I lay out the structure of American defamation law, using the recent lawsuits brought by FBI Director Kash Patel as a launching point. Special bonus: Almost no discussion of New York Times v. Sullivan (an important case but one that listeners have doubtless heard much about elsewhere).

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And check out our past episodes:

Free Speech

Journal of Free Speech Law: "A New Frontier for an International Right with No Frontiers: Freedom of Expression & Generative AI Outputs," by Evelyn Mary Aswad

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The article is here; the Introduction:

In recent years, a lively scholarly discourse has emerged about whether and how the U.S. First Amendment protects generative AI outputs. Some have argued that such outputs are protected at the very least by the rights of AI users to receive information and to create their own speech. Others would not recognize gen AI outputs as receiving such First Amendment protections. The issue of whether gen AI program creators are entitled to free speech protections for such outputs has also spurred a variety of reactions.

As this discourse on the First Amendment and gen AI unfolds, it is also important to reflect on what the global freedom of expression standard has to say on the matter. This standard will affect discussions about national and regional regulatory approaches to gen AI throughout the world. In addition, global corporate responsibility standards call on companies to respect international human rights norms in their operations, which may also impact how businesses that provide gen AI services approach their activities.

Part I of this Article explores the scope of the existing global free expression standard. Part II considers the standard's application to gen AI outputs, including in various governmental and corporate contexts. Ultimately, this Article maintains that the global free expression standard protects the rights of individuals to seek and receive information of any kind, including gen AI outputs.

In addition, if human speakers share gen AI outputs as part of their own speech, this global standard also protects those speakers' right to impart information. Governmental attempts to restrict gen AI outputs are therefore subject to the standard's safeguards on how this human right can be limited. And companies providing general-purpose gen AI services should also respect human rights, including freedom of expression, in their operations.

Energy efficiency

Solicitor General Asks Supreme Court to Eighty-Six Energy Conservation Rule

The Trump Administration is refusing to defend a D.C. Circuit decision upholding a flawed energy conservation ruie.

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Last November, a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld a Department of Energy energy efficiency standard for natural gas-powered consumer furnaces and commercial water heaters that effectively banned non-condensing units from the market. The panel decision might have been defensible (and understandable) in a Chevron world, but it (as Judge Rao's dissent demonstrated) it was hard to reconcile with the approach to statutory interpretation dictated by Loper Bright Enterprises. 

At the time, I wondered why the Trump Administration had allowed this case to go to judgment. It could have asked the D.C. Circuit to put any decision on hold while DOE reconsidered the rule, but it didn't.

In January, a coalition of industry groups petitioned for certiorari in American Gas Association v. Department of Energy. Yesterday, the Solicitor General filed his response, asking the Court to GVR the case due to the D.C. Circuit's error.

From the SG's brief:

Petitioners contend (Pet. 25-30) that the Department's December 2021 interpretive rule and resulting energy-conservation standards reflect an unduly narrow understanding of what constitutes a "performance characteristic[]" under EPCA. Following the change in Administration, the government agrees with that contention. The Court should accordingly grant the petition for a writ of certiorari, vacate the judgment below, and remand for further proceedings (GVR) in light of the government's position in this brieft.

Granting the government's request would send a message to the D.C. Circuit to take statutory interpretation more seriously and vindicate a powerful (and persuasive) Rao dissent. It would also save the Administration the time and trouble of trying to undo the rule in the shadow of the D.C. Circuit's decision. As I noted last fall, the panel opinion could make it difficult for the Trump Administration to rescind or modify the rule on the grounds that the best interpretation of the statute does not allow it. A GVR from the Court would solve this problem.

Standing

Unanimous Supreme Court Affirms Standing to Challenge Subpoena for Info on Financial Supporters

The Court dispatches with an easy case the lower courts should have gotten right.

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The Supreme Court headline for today is the Court's 6-3 decision narrowing the application of Section 2 of the Voting Rights Act in Louisiana v. Callais. Before deciding Callais, however, the Court also decided First Choice Women's Resource Centers v. New Jersey.

In First Choice, a unanimous Court concluded that a pro-life religious organization had Article III standing to challenge the constitutionality of a subpoena from the New Jersey Attorney General demanding information about the nonprofit's financial supporters. As occurred with the mifepristone litigation, the fact that this case touches on abortion did not prevent consensus among the justices.

Justice Gorsuch wrote for the Court, making quick work of the arguments accepted by the lower courts and advanced by New Jersey. As Justice Gorsuch notes, "the question before us all but answers itself." Nonetheless, three of the four lower court judges to consider the case reached the opposite conclusion.

From Justice Gorsuch's opinion:

This case presents a narrow question. We are not asked to decide the merits of First Choice's federal lawsuit, only whether it may proceed. Article III of the Constitution vests federal courts with the "judicial Power" to decide "Cases" and "Controversies." §2, cl. 1. Inherent in that assignment is a "standing" requirement consisting of three elements: "injury in fact, causation, and redressability." Diamond Alternative Energy, LLC v. EPA, 606 U. S. 100, 110– 111 (2025). Together, these elements help us distinguish cases and controversies fit for judicial resolution from questions of public policy reserved to the elected branches or abstract disputes better left to the debating hall. See ibid.

As this case comes to us, it centers on the injury-in-fact element. To satisfy that element, a case must involve "an injury that is concrete, particularized, and actual or imminent." Id., at 111 (internal quotation marks omitted). Because this standard tolerates suits involving "actual or imminent" injuries, a party need not always wait for the government to take coercive action against it before filing suit to challenge the government's conduct. Instead, a litigant may bring a pre-enforcement suit seeking prospective relief against government officials so long as it faces "a credible threat of enforcement." See Susan B. Anthony List v. Driehaus, 573 U. S. 149, 161, 164–167 (2014).

Before us, First Choice advances two arguments for why it can satisfy the injury-in-fact requirement. First, the group submits that the Attorney General's subpoena itself—and specifically its demand for donor information— has caused it to suffer an actual and ongoing injury to its First Amendment rights by deterring donors from associating with it. Second, First Choice contends that it faces an imminent future injury because with the subpoena came a credible threat that the Attorney General would seek to enforce it in state court if the group failed to comply. For our purposes, it suffices to address only the first theory as it is enough to carry the day.

And the opinion concludes:

Since the 1950s, this Court has confronted one official demand after another like the Attorney General's. Over and again, we have held those demands burden the exercise of First Amendment rights. Disputing none of these precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeeds. Accordingly, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Free Speech

"Making Negative Statements" About People to Their Employers = Criminal Harassment

"[S]tatements made to third parties can be 'directed at' the victim," and thus criminal harassment if they're repeated and likely to cause serious annoyance or distress, "when they are designed to provoke an adverse consequence against the victim."

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Arizona criminal harassment law provides, in relevant part:

A person commits harassment [a class 1 misdemeanor] if the person knowingly and repeatedly commits an act or acts that harass another person or the person knowingly … [c]ontacts or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means….

"[H]arass" means conduct [excluding] a {lawful demonstration, assembly or picketing} [1] that is directed at a specific person and [2] that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and [3] the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person.

This pretty clearly covers certain kinds of unwanted communications to a person (e.g., repeated unwanted seriously annoying phone calls). But does it also cover communications about a person? The statute does specifically cover one such communication: making "a false report to a law enforcement, credit or social service agency against another person." But what about true statements, or expressions of opinion, about someone that are reasonably seriously upsetting—e.g., complaints to employers, which might put the target's job in jeopardy (surely something that would seriously alarm, annoy, humiliate, or mentally distress people)?

Monday's unanimous Arizona Supreme Court decision by Chief Justice Timmer in Hernandez v. Loarca says the law does cover such speech about people:

Briana Hernandez and Luis Loarca had a past romantic relationship that resulted in the birth of their daughter …, who was ten years old at the time of the events at issue…. Hernandez obtained an order of protection against Loarca based on allegations that he engaged in domestic violence by harassing her at Daughter's school, where Hernandez was also employed. See A.R.S. § 13-3601(A)(2) (including harassment by one parent against the other as an act of domestic violence). Specifically, she alleged that Loarca harassed her by making negative statements concerning her to Daughter's teacher and the school principal….

We conclude that communications may be "directed at" a victim even when conveyed to a third party when they are designed to provoke an adverse consequence against the victim…. If such communications are designed to provoke an adverse consequence for the victim that would seriously alarm, annoy, humiliate, or mentally distress a reasonable person in the victim's position, and in fact do so, they constitute harassment. In short, § 13-2921(E) regulates conduct based on its target, not its transmission path.

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asylum

Trump's Shameful Effort to Deport Russian Dissenters Fleeing Putin

The administration seeks to deport them back to Russia, in spite of overwhelming, moral, legal, and strategic reasons not to do so.

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A hand grabs at a chain link fence with an American flag on the other side, symbolizing the struggle to immigrate to America.
Bradley Greeff | Dreamstime.com

As a recent Boston Globe article explains, the Trump Administration is trying to deport Russian dissenters against Vladimir Putin's war of aggression:

Russian asylum seekers are being rejected despite the likelihood they will be arrested back in Russia. It started during the Biden administration but has accelerated in President Trump's second term. Since Trump returned to office last year, US immigration authorities have deported possibly hundreds of Russian asylum seekers. This is according to estimates by Russian America for Democracy in Russia (RADR), an organization that assists antiwar Russians with finding legal aid and that has analyzed ICE data.

Russian refugee seekers deported by the administration include a 25-year-old man who defected from the army, was arrested upon his return to Moscow, and was charged with desertion. An opposition activist named Leonid Melekhin was sent to prison straight from the airport after his deportation flight from the United States in 2025, and he now faces a lengthy prison sentence. RADR estimates that another 1,000 Russians who have requested asylum are being held in US detention facilities.

Krasnov applied for asylum at the US-Mexican border back in 2023. He spent more than 14 months in detention until he was released in October 2024 after he joined a class-action lawsuit challenging unlawful detentions. Then he was detained once again during a check-in with ICE in February 2025.

Now he is certain that he will be sent to prison the moment he lands in Russia. One common fate for Russian prisoners is to be sent off to the Ukraine war. At one point, Russian prisoners accounted for 18 percent of all Russian casualties in the war. It baffles Krasnov that the Trump administration is providing more foot soldiers to fight against Ukraine, a US ally. "In Russia, every man is a potential cog in Putin's war machine. Why give him more cogs?''….

The Russians who have been detained by ICE include many immigrants who drive trucks for a living. It is a profession that has made them easy targets for immigration officials, who prowl the roads looking for suspicious-looking drivers or are able to look at their documents at checkpoints. "ICE officers are simply rounding up those who go right into their hands. Don't even have to make an effort to hunt anyone down,'' says Anastasia Topilina, whose husband, Alexander, was detained at a checkpoint in Laredo, Texas.

Alexander Topilin was being held in that detention center alongside about 20 other Russian-speaking truck drivers. His family had been forced to flee Russia because of threats from the police, who had singled Topilin out for his years-long participation in anti-Putin protests. After being detained at one of the rallies, he says that he was strangled with a "terry cloth towel'' to force him to confess to trying to "overthrow the current president.''

I previously wrote about this issue back in September of last year, and the points I made still apply:

[A]busive treatment of Russian dissenters fleeing Putin occurred under Biden, as well. And I condemned it at the time. But Trump's expansion of the deportations and collaboration with the Russian government is worse.

Beginning soon after Russia's full-scale invasion of Ukraine, I have argued the US and other Western nations should open their doors to Russians fleeing Putin's increasingly repressive regime. It's the right thing to do for both moral and strategic reasons. Morally, it's wrong to bar people fleeing brutal repression and, in some cases, seeking to avoid being drafted into an unjust war of aggression. Strategically, we benefit from depriving Putin of valuable manpower and from enabling the Russian refugees to contribute to our economy and scientific innovation (Russian immigrants and refugees are disproportionate contributors to the latter).  I have also advocated for Ukrainian refugees, whose interest I cannot easily be accused of neglecting.

I would add that the 1980 Refugee Act gives anyone crossing a US border the right to apply for asylum, and Russians fleeing persecution for opposing Putin's war have an obviously strong case for getting it. US law grants asylum to people who enter the United States and meet the legal definition of "refugee," defined as "any person who is outside any country of such person's nationality…. and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Russians threatened with imprisonment and other repression because they oppose Putin's war undeniably qualify as victims of persecution based on "political opinion." In today's Russia, you can get a prison sentence for spreading what the Kremlin calls "false information" about the war, which includes such things as referring to Putin's "special military operation" as a "war."

Elsewhere, I have made the case for expanding the legal definition of "refugee," which excludes many people fleeing various types of horrific violence and oppression. But Russian war dissenters clearly qualify under the current narrow definition.

In sum, Trump's effort to deport Russian anti-Ukraine War dissenters is simultaneously unjust, illegal, and harmful to US foreign policy interests.  But at least you can say Trump is consistent. His abusive treatment of Russian dissenters is of a piece with his efforts to deport people seeking to escape other oppressive anti-American regimes, such as those who fled Cuba and Venezuela, Iranian Christians, and Afghans who escaped the Taliban (including many who aided the US during the war).

Conservative Boston Globe columnist Jeff Jacoby makes some additional related points in this article.

Free Speech

Analyzing Indictment of James Comey for "86 47" Post

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Now-deleted Comey post, copied from a CNN article on the indictment.

From today's indictment:

On or about May 15, 2025, in the Eastern District of North Carolina, the defendant, JAMES BRIEN COMEY JR, did knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States, in that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out "86 47", which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.

In violation of Title 18, United States Code, Section 871(a).

A second count also alleges this violated the federal interstate threats statute, 18 U.S.C. § 875(c).

I think this prosecution is unjustified, and will get thrown out. Let me quickly analyze why.

Threats: To "eighty-six" someone is, to quote the Oxford English Dictionary, "to eject or debar (a person) from premises; to reject or abandon; (in earliest use) to refuse to serve (a customer)." (In context, "47" means Trump, who is now the 47th president.) Here are the examples the OED gives:

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Executive Power

Rethinking Conservative Approaches to Executive Power

Conservative legal commentator Gregg Nunziata outlines reasons why conservatives should reject broad views of executive power.

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In a recent Atlantic article, prominent conservative legal commentator Gregg Nunziata argues that conservatives should rethink their advocacy of sweeping executive power, and support tighter limits on presidential power:

The second Trump administration has revealed American Caesarism in nearly full bloom. Despite ambitions to fundamentally change the course of the country, this administration has no real legislative agenda. Instead, the president governs by executive orders, emergency decrees, and extortionate transactions, using his power to reward his friends and punish his enemies. He's launched foreign military adventures and full-blown wars seemingly based on personal whim, and has made the military a political prop and a tool for domestic law enforcement. With Congress sidelined and the courts reluctant to check Donald Trump's excesses, America has been left with what some legal scholars have described as an "executive unbound"—and with a president who threatens to supplant the republic in all but name….

The central premise of the Constitution is that liberty requires divided authority. The accumulation of power in one branch of government is, as James Madison warned, "the very definition of tyranny." Americans are already feeling the consequences of this imbalance: Because executive orders, emergency declarations, and unilateral action lack the durability of legislation passed by Congress, policies swing wildly from one administration to the next. Families and businesses cannot plan ahead, which undermines investment, growth, and prosperity.

American Caesarism did not emerge overnight with the election of Trump, but over the course of decades. And though conservatives alone did not create this state of affairs, many were key proponents of a vision of politics centered on one commanding figure—a vision that is now destabilizing our country. I have spent my career in the conservative legal movement, which has included advising Senate Republicans on judicial nominations. I have become convinced that if the Madisonian republic is to endure, conservatives must reckon with our role in bringing the nation to its current breaking point, and work to reestablish the checks and balances that we helped erode.

I agree with most of Nunziata's points, and certainly with his bottom-line conclusion that the conservative legal movement, the judiciary, and especially Congress should all do much more to constrain executive power.

I would extend Nunziata's logic in several ways. First, as I have argued at length in various previous writings, the nondelegation and major questions doctrines pioneered by conservative judges and legal scholars can be valuable tools for constraining executive power, and they should be used more. We've already seen some beneficial effects of them in the tariff case recently decided by the Supreme Court. And there is much more potential there, for example when it comes to constraining dangerous presidential efforts to "nationalize" control over elections.

Second, I would amplify Nunziata's calls for stronger judicial review of and congressional control over invocations of executive emergency powers. I previously wrote about that here and here. Courts should not defer to presidential assertions that an "invasion," "unusual and extraordinary threat," or other emergency justifying use of sweeping powers exists. They should demand proof. And Congress should impose time limits on emergency powers, and make clear that legal limitations on emergency powers are subject to nondeferential judicial review.

Third, even if "unitary executive" theory is otherwise sound, it should not be applied to the exercise of authority over issues that were not themselves within the original scope of federal authority. If we are not going to eliminate such unoriginalist expansions of federal power entirely, we should at least not allow concentration of that vast authority in the hands of one person.

I do have a few reservations about Nunziata's analysis. I think he underrates the potential impact of the Supreme Court's ruling in the tariff case (which I helped litigate). Nunziata is right that the Court based its decision primarily (thought not "solely," as he put it) "on the determination that the emergency authority at issue does not authorize tariffs" and that the Court did not address Trump's bogus invocation of a national emergency. But, as recounted in my Atlantic article about the case, all six justices in the majority emphasized that the president could not claim unlimited power to impose tariffs for any reason, and the three conservatives also ruled against Trump based on the major questions doctrine, thereby signaling their willingness to utilize against future power grabs on "foreign affairs" powers, including those by Republican presidents. Justice Gorsuch also emphasized nondelegation considerations.

I think Nunziata may also underrate the extent to which the Supreme Court's rulings limiting judicial deference to executive agencies can be utilized to constrain the presidency. He notes that "the judiciary remains less willing to confront executive overreach outside of the regulatory context, especially in matters of purported national security." This is true to an extent. But the logic of these decisions applies broadly to all assertions of executive power, and multiple federal judges - including conservative ones - have applied them in a nondeferential way in the tariff case, and in litigation over the president's claims that illegal migration and drug smuggling qualify as "invasion." On the other hand, it is also true that a few conservative judges have claimed the president deserves virtually absolute deference on the latter issue. I go over the relevant precedents and critique the case for deference in this article.

For me as a libertarian, it's generally easy to oppose executive power grabs because - in addition to constitutional considerations  - I also oppose the vast bulk of them on moral and policy grounds. That's true of Biden's student loan forgiveness plan, Trump's actions on immigration and tariffs, and more.

By contrast, executive power poses some difficult dilemmas for both left-liberals and conservatives. They may often welcome sweeping executive power when "their" guy is in the White House, hoping that he will use it for beneficial purposes, even as they fear its exercise when the shoe is on the other foot. To them I can only say that a massive concentration of power in the hands of one person is inherently dangerous, at odds with the constitutional design, and - as Gregg Nunziata explains - a serious potential menace to the republic. At the very least, these concerns should lead you to support tighter constraints on executive power than you might otherwise advocate.

NOTE: Gregg Nunziata is Executive Director of the Society for the Rule of Law. I am a member of SRL's Advisory Council (an unpaid position).

Affirmative Action

The Origins and Influence of Zero-Sum Thinking

A new study highlights the power of zero-sum thinking as a determinant of political views - and also should lead some to rethink immigration.

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A new study just published by the prestigious American Economic Review may be the most important recent social science article most nonexperts have never heard of. It's entitled "Zero-Sum Thinking and the Roots of US Political Differences" and the authors are Sahil Chinoy, Nathan Nunn, Sandra Sequeira, and Stefanie Stantcheva. Here is the abstract:

We investigate the origins and implications of zero-sum thinking: the belief that gains for one individual or group tend to come at the cost of others. Using a new survey of 20,400 US residents, we measure zero-sum thinking, political preferences, policy views, and a rich array of ancestral information spanning four generations. We find that a more zero-sum mindset is strongly associated with more support for government redistribution, race- and gender-based affirmative action, and more restrictive immigration policies. Zero-sum thinking can be traced back to the experiences of both the individual and their ancestors, encompassing factors such as the degree of intergenerational upward mobility they experienced, whether they immigrated to the United States or lived in a location with more immigrants, and whether they were enslaved or lived in a location with more enslavement.

I have long argued that zero-sum assumptions are central to the dangerous world views of both right-wing nationalists and many left-wing socialists and "wokists." I have also long warned against the dangers of widespread political ignorance, which has been a central theme of my work for many years. This study provides extensive evidence that zero-sum thinking is widespread, and that it is at the root of many crucial political attitudes.

As the authors show, zero-sum worldviews cut across party and ideological lines (though slightly more prevalent among Republicans than Democrats), and are strong predictors of political views on issues like redistribution, the use of racial preferences for affirmative actions, and immigration restrictions.

The authors' analysis of the determinants and correlates of zero-sum worldviews is also groundbreaking. Most notably, they find that experiences of upward mobility and immigration (including having immigrant parents or grandparents) are strongly negatively correlated with zero-sum thinking. On the other hand, zero-sum thinking has a strong positive correlation with having ancestors who experienced slavery and others forms of forced labor or even just living in an area where slavery was historically prevalent.

Among American Blacks, this latter effect is, as the authors recognize, partly caused by a history of segregation and discrimination that persisted after slavery was abolished. The same can be said of the impact of living in an area where slavery was prevalent (which also are almost always areas where there was a high degree of later segregation and other discrimination). But it is notable that the impact of past enslavement is also significant among other groups, such as Jews whose parents or grandparents were forced laborers during the Holocaust.

The impact of immigration is particularly noteworthy in light of current debates over immigration restrictions. Libertarians and free-market conservatives sympathetic to restrictionism often argue that immigration should be curtailed because it might lead to increased welfare state spending. But the Chinoy, et al. study shows that zero-sum thinking is a major determinant of support for redistributive policies, and immigrants and children of immigrants are much less prone to it than other voters, even after controlling for a variety of other variables. This is actually an additional important pathway by which immigration is likely to reduce the burden of the welfare state, rather than increase it. I went over some additional flaws in the welfare state rationale for immigration restrictions in this post, and in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

The same goes for concerns that immigration might increase "woke" policies like affirmative action racial preferences. Chinoy, et al. also show that support for these policies is heavily driven by zero-sum assumptions, and immigrants and their children are far less likely to hold such views than natives. I outlined some other ways in which immigration reduces support for affirmative action here.

I don't want to overstate the importance of these points. As also noted in Chapter 6 of my book, recent immigrants tend to vote and otherwise participate in politics at lower rates than natives. That considerably diminishes any effect they have on political outcomes, whether good or bad. But to the extent they do have a marginal impact, it's likely to reduce political pressure for redistribution and racial preferences rather than increase it.

I would add that, as the authors point out, zero-sum worldviews are likely to be important for a range of issues beyond those they tested. For example, in addition to heavily influencing views on immigration, I would expect them to also influence views on protectionism. Indeed, a measure of zero-sum attitudes towards international trade is (quite properly) one of the authors' questions gauging zero-sum attitudes.

I would also expect zero-sum views to be crucial determinants of attitudes on such policies as rent control and "NIMBY" restrictions on housing construction. If you think the economy is a zero-sum game generally, you are probably more likely to also believe that housing is a zero-sum game between landlords and tenants, and between long-time residents and developers and potential migrants. Indeed, survey data on housing issues shows that much opposition to zoning reform is driven by false beliefs that new housing construction will not reduce prices, and other kinds of economic ignorance driven in part by zero-sum assumptions.

While most of the authors' evidence is limited to the United States, they note some data that suggests similar effects in other countries. Testing their hypothesis further in other countries is an important potential topic for future research.

As regular readers know, I am generally hostile to zero-sum thinking and the policies it leads to. I think zero-sum assumptions about immigration, housing, the interests of the poor and minority groups, and most other issues are largely wrong, and lead to pernicious policies. In previous writings, I have extensively critiqued zero-sum assumptions about immigration (e.g. here and here), and housing, among other issues. In most cases, zero-sum games only arise if pernicious government policies (often themselves based on zero-sum assumptions) needlessly create them. For example, housing can be a zero-sum game when exclusionary zoning blocks new construction in response to demand.

However, those more sympathetic to various types of zero-sum thinking than I am can also find value in the Chinoy, et al. article. Effects I view as pernicious, they might actually see as beneficial (and vice versa). Either way, the impact of zero-sum thinking on political views is an incredibly important field of study, and I commend the authors of this article for making a major advance in our understanding.

The above covers only part of what's in the article. There is much more. Serious students of this subject should make sure to read the whole thing.

 

Free Speech

"Gossip," "Abusive Language," and "Soft Beta Males" in Public Comments at School Board Meetings

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Blanchard v. Augusta Bd. of Ed., decided yesterday by Judge Stacey Neumann (D. Me.), held that the First Amendment was likely violated by school board public commentary policies forbidding

  1. "gossip,"
  2. "abusive … language.,"
  3. "vulgar language," and
  4. "complaints or allegations … at Board meetings concerning any person employed by the school system or against particular students," also described as "[p]ersonal matters or complaints concerning student or staff issues."

The parties had agreed that the public comment period was a "limited public forum," a place opened up by the government for speech on particular subjects. In a limited public forum, speech restrictions must be viewpoint-neutral and reasonable. The court then held that the four restrictions noted above violated one or both of these elements:

[1.] Gossip:

By its terms, the gossip prohibition turns on what is being said: "rumors or information about the behavior or personal lives of other people." See Gossip, Merriam-Webster. Such a category of speech does not exist solely and definitively outside of that which relates to school or education matters. Comments about the conduct or personal behavior of teachers, administrators, or Board members may indeed bear directly on school operations and policy….

[And] Policy BEDH provides no objective standard to distinguish "gossip" related to school and education matters from other such commentary. That lack of clarity leaves speakers guessing at what is allowed and invites arbitrary enforcement by officials presiding over the meetings. Without a workable line, there is no "sensible basis for distinguishing what may come in from what must stay out." In practice, the rule allows the presiding officer's own sensibilities to determine what counts as "gossip," which "openly invites viewpoint discrimination."

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