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Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

A late-night knock at the door, unregistered silencers, and a prison-drone conspiracy.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

This week on the Short Circuit podcast: Live from Michigan Law, it's our Administrative Law-apalooza. With Professors Chris Walker & Nicholas Bagley and top admin law lawyer Zach Larsen.

  1. In 2006, the City of Baltimore agreed to use eminent domain to acquire a huge chunk of land and turn it over to a private developer. But then, in a turn of events that will surprise everyone except those who have ever read anything at all about eminent domain, the planned development is a flop, leaving most of the area vacant, rat-infested, and generally an annoyance to its neighbors. Which stinks, says the Fourth Circuit, but doesn't mean those neighbors have a claim under the Takings Clause to challenge the condemnation of their erstwhile neighbors' land. Read More

Politics

The Declaration and Civic Friendship

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[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

Partisanship has plagued American society since before Independence. John Adams notably claimed that at the time of the Revolution, "one full third were averse to the Revolution," one-third in favor, and a final third swinging between the other two.[i] Yet the idealism that inspired the main voices for Independence led them to plant their flag firmly in the soil of an American "civic friendship" that was long a living tradition in local and colonial assemblies.

In the colonial era, such a concept of civic friendship and equality was inherent in the practice of local representation. The signers of the Mayflower Compact in 1620 agreed to "covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation… for the general Good of the Colony."[ii] Their bonds preceded the society they were going to build. In doing so, they reflected civic friendship as outlined by Aristotle, in which a "friendship of utility," citizens combine to pursue their self-interest. In doing so, they work in harmony for the good of the city (polis) and their fellow citizens in it. Practically, citizens accept the political reality of ruling and being ruled in turn, as each trusts each to do the best for the community. Ultimately, such reciprocity creates the condition of civic equality.[iii]

By a century and a half later, Thomas Paine had shifted the direction of influence, writing in Common Sense that "[Society] promotes our happiness positively by uniting our affections…"[iv] On Paine's view, it is society itself that creates feelings of civic unity by which common goals can be achieved. By the mid-1770s, self-government had come to be consciously understood as the only legitimate form of political system that can lead to both unity and shared civic goals.

This was thrown into sharp relief once the colonists found themselves in conflict with King and Parliament. The imposition of the Intolerable Acts in 1774 after the Boston Tea Party introduced a new political element that erased both self-government and reciprocity. If civic friendship, on Aristotle's view, operated through the act of ruling and being ruled in turn, then direct British rule in Massachusetts made such a relationship and concern for the good of the colony an impossibility. Not only was self-rule removed, but the colonies could of course never hope to rule Britons in turn. The civic relationship was both transformed and made fundamentally unequal and unfair.

Despite nearly 170 years of a common culture and intimate social ties between the British American colonies and Great Britain, as well as vital economic links that benefited both societies, direct British intervention in Massachusetts both activated a sensitivity to the grounds of civic friendship (i.e., reciprocity and fair play) and an awareness that there could be no such feelings under the current conditions. This was a civic puzzle that could not be solved short of Independence, for a superior layer had been imposed on a balanced local system.

Moreover, British intervention and ultimately military action now forced the question of continental (i.e., national) solidarity, transcending age-old colonial boundaries and sovereignty. Not just individual colonial civic structures were being transformed, but the borders between them were being subjected to a new and unfamiliar stress. Generations of civic friendship within colonies were at one and the same time being made politically impotent by British intervention and mutated into a new national civic solidarity.

This unique and unprecedented historical crisis found its ultimate expression in the Declaration of Independence. Such explains Thomas Jefferson's rhetorical approach of seeking both to unite disparate colonial Americans and permanently sever them from their "Brittish brethren." In dealing with the British, the full flood of Jefferson's rage was reached in his famous rough draft of the Declaration, written in mid-June 1776, in a passionate paragraph almost entirely excised by the Continental Congress.

The Americans, Jefferson wrote in his draft, had "appealed to their native justice & magnanimity, as well as to the ties of our common kindred" to oppose the depredations of the King, but these had been rejected. Thus, both justice and solidarity, critical for the health of the political community, had been violated. This betrayal had "given the last stab to agonizing affection, and manly spirit bids us to renounce for ever these unfeeling brethren. we must endeavor to forget our former love for them … we might have been a free & great people together."[v] The impossibility of civic friendship between these now-separated two peoples could scarcely be more powerfully expressed.

Conversely, the need for a new, national civic solidarity animates the final draft of the Declaration. The document begins with an assertion of continental unity: "When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another…" (emphasis added). The Americans are one community, the Declaration asserts, and the Signers instantiated that by pledging to each other their lives, fortunes, and sacred honor.

Factionalism and partisanship of course were not banished by the lofty sentiments of the Declaration. The dramatic rupture between John Adams and Thomas Jefferson is but the most famous of instances of the real world intruding upon the realm of philosophical thinkers. Yet over the centuries, the spirit of the Declaration worked its way into the body politic in powerful ways. Notably, in this most multiethnic of societies, a sense of shared natural rights that Americans had been willing to sacrifice for, was over painful decades extended to those not originally included, including women, Blacks, and immigrants from around the globe. Each of these groups sought neither separation nor enclaves, but rather to become a full part of the larger body politic and to share in the concern for the good of the country. Of course, theirs was an exercise in civic friendship that was not always repaid, most notably in the continuation of segregation and discrimination against Blacks and American Indians.

But in upholding the ideals of the Declaration of Independence, they sought only to be accepted fully as American, and not as the "hyphenated Americans" so roundly criticized by Teddy Roosevelt in his 1915 address on "Americanism." In that speech, Roosevelt laid out a modern compact of civic friendship, asserting that immigrants "get all their rights as American citizens … and that they live up to their duties as American citizens." The two elements were inseparable: rights and duties. It was a formulation that remains applicable to all in America, Mayflower descendant and Montenegrin arrival alike.

[i] "From John Adams to James Lloyd, 28 January 1815," Founders Online, National Archives, https://founders.archives.gov/documents/Adams/99-02-02-6401.

[ii] https://avalon.law.yale.edu/17th_century/mayflower.asp

[iii] Aristotle identifies three types of friendship: those based on pleasure, virtue, and utility. Politics 1280b-1281a. Eudemian Ethics 1242a-1243b; Nicomachean Ethics 1157a, 1159b-1160a, 1162b-1163a,

[iv] Thomas Paine, Common Sense (1776), https://oll.libertyfund.org/pages/1776-paine-common-sense-pamphlet.

[v] "Rough Draft" https://www.loc.gov/exhibits/declara/ruffdrft.html (punctuation and orthography in original).

Gerrymandering

Virginia Supreme Court Voids Virginia Gerrymander

The extreme partisan gerrymander of Virginia's congressional districts will not go into effect after all.

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This morning, by a vote of 4-3, the Virginia Supreme Court declared the ballot initiative supporting a partisan gerrymander of Virginia's congressional districts to violate the Virginia Constitution.

The majority opinion by Justice Kelsey begins:

On March 6, 2026, the General Assembly of Virginia submitted to Virginia voters a proposed constitutional amendment that authorizes partisan gerrymandering of congressional districts in the Commonwealth. We hold that the legislative process employed to advance this proposal violated Article XII, Section 1 of the Constitution of Virginia. This constitutional violation incurably taints the resulting referendum vote and nullifies its legal efficacy.

The opinion concludes:

While the Commonwealth is free by its lights to do the right thing for the right reason, the Rule of Law requires that it be done the right way. Under the Constitution of Virginia, the right way "necessitate[s] compliance with the requirements of a deliberately lengthy, precise, and balanced procedure," Coleman, 219 Va. at 153, governing the lawful adoption of constitutional amendments. "[S]trict compliance with these mandatory provisions is required in order that all proposed constitutional amendments shall receive the deliberate consideration and careful scrutiny that they deserve." Id. at 154.

In this case, the Commonwealth submitted a proposed constitutional amendment to Virginia voters in an unprecedented manner that violated the intervening-election requirement in Article XII, Section 1 of the Constitution of Virginia. This violation irreparably undermines the integrity of the resulting referendum vote and renders it null and void. For this reason, the congressional district maps issued by this Court in 2021 pursuant to Article II, Section 6-A of the Constitution of Virginia remain the governing maps for the upcoming 2026 congressional elections.

Among other things, the majority notes that the state had argued vociferously against judicial review of the ballot initiative before a vote was held, noting that if the initiative failed there would be no need for any judicial review at all. Given that prior argument, the majority would not credit the state's argument that judicial review was inappropriate after the vote was held. That sort of "heads-I-win, tails-you-lose" argument is often disfavored by courts, as judges generally recognize such arguments as a way to circumvent judicial review altogether.

The dissent by Chief Justice Powell begins:

This Court has long recognized that our "'Constitution is certain and fixed.'" Staples v.
Gilmer, 183 Va 338, 350 (1944) (quoting Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (Pa. 1795)). "'[I]t contains the permanent will of the people,'" and, therefore, its meaning can only be altered by the people. Id. (quoting Vanhorne's Lessee, 2 U.S. (2 Dall.) at 308) (emphasis added). Notwithstanding this bedrock principle, today the majority has broadened the meaning of the word "election," as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election. Under the facts of this case, I believe the circuit court erred and I respectfully disagree with the majority's conclusion that the General Assembly did not strictly comply with Virginia's constitutional requirements. For this reason, I must respectfully dissent.

As this is a state-law-based decision, it has no legal effect on gerrymandering efforts in other parts of the country.

shadow docket

The Mifepristone Briefs Are In, But One Dog Did Not (Yet) Bark

It appears the Supreme Court will decide the fate of telemedicine prescriptions for mifepristone without the benefit of an FDA filing.

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Louisiana has filed its response to Danco Laboratories and GenBioPro's applications for a stay of the U.S. Court of Appeals for the Fifth Circuit order barring the prescription of mifepristone to terminate pregnancies via telemedicine. As one would expect, Louisiana defends its aggressive standing theory and the Fifth Circuit's order.

In case the justices did not have enough to consider before the administrative stay entered by Justice Alito expires on Monday, there are nearly three-dozen amicus briefs filed on behalf of various individuals and organizations who care about the outcome . Few of these briefs are likely to affect the outcome, however, and even fewer add anything of substance to the parties' briefs.

Activist groups, political figures, and an increasing number of academics want to fly the flag for their respective side, and amicus briefs let them do that. The various groups get to tell their members and donors that they took the fight to One First Street, and appellate attorneys get another line on their CVs, whether or not the briefs add anything of value.

Everyone else may have filed a brief, but the Food and Drug Administration did not. The Fifth Circuit's order halts an FDA regulation, but the FDA seems not to care. The FDA is reviewing the 2023 decision to allow mifepristone prescriptions via telemedicine, and has acknowledged some concerns with the 2023 analysis, but the Trump Administration has generally been quite aggressive in responding to lower court orders that block federal agency action. It has argued repeatedly that such orders necessarily cause the government irreparable harm. This puts the Trump Administration in the position of either upsetting pro-life organizations or throwing the FDA under the bus.

As the administrative stay expires Monday at 5pm, it is reasonable to expect something further from the justices before then. What will the Court do? There are several options beyond simply blocking the Fifth Circuit's order or allowing it to go into effect.

If the justices want to better understand the FDA's position, they could request briefing from the FDA, and further delay an ultimate decision. The justices could also decide that this case merits greater examination, particularly on the standing question.

As there is a circuit split between the Fifth and Ninth on the theory of state standing pushed by Louisiana, I would not be surprised if the Court treats the stay requests as applications for certiorari before judgment. Louisiana anticipated this possibility in its filing, and noted it would acquiesce to certiorari before judgment and oral argument before the summer recess if the Court were inclined to grant the stay request. With everything else the justices have on their plate before July, I doubt the Court would put this case on such a short fuse, but a grant of certiorari to examine the state standing theory is a real possibility.

Politics

What Can Be Done To Stop Campus Disruptions?

Judge Ho draws a direct line between Yale and UCLA.

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I recently wrote about the latest campus disruption at UCLA. As you might have predicted, the students who interrupted the event faced no consequences. By contrast, UCLA suggested that the FedSoc chapter could face liability if they named the people who protested at the public event. As FIRE pointed out, the school cannot impose liability for sharing truthful information. UCLA quickly backed off.

Yesterday, the Los Angeles Chapter of the Federalist Society hosted a panel discussion about free speech on campus. The panelists were Professor Eugene Volokh (formerly of UCLA), Professor Jon Michaels (UCLA), and Yitzy Frankel (a student at UCLA). Judge Jim Ho moderated. But as Judge Ho often does, he shared his thoughts on the matter.

Judge Ho's introduction was covered in Bloomberg, so I thought it might be useful to present his full remarks in context. I asked Judge Ho, and he graciously allowed me to share his comments.

The recent incident at UCLA Law School should alarm every lawyer, every judge, every citizen who cares about the future—and the future leadership—of our country.

To begin with, this is not just one incident. It's just the latest in a string of incidents on campuses across the country. And it reveals what has been kept hidden for too long from the American people. Too many law schools have stopped teaching students how to be good citizens—let alone good lawyers. Too many institutions of legal education have become incubators of intolerance. And I worry about the impact on the rest of our country.

Let me be clear: I didn't fly halfway across the country because some law school event went poorly. At the end of the day, I really don't care about what happens at UCLA. That doesn't affect me at all.

Here's my concern: If this is what we're teaching the next generation of lawyers and leaders—that this is how you treat people you disagree with—ask yourself: What else are they willing to do to those they disagree with? What other lines are they willing to cross? What kind of country does that look like? And is it the kind of country any of us would like to live in? Because what happens on campus doesn't stay on campus.

Students are learning all the wrong lessons. They're bringing those lessons to workplaces and communities all across America. And it's tearing our country apart.

But even that's not what most infuriates me about recent events at UCLA. What most infuriates me is that my branch of government has no interest in doing anything about it.

Four years ago, a similar incident occurred at Yale Law School. A group of woke law students disrupted an event that, ironically, was intended to promote free speech—simply because one of the speakers was a prominent Evangelical Christian lawyer.

The disruption is troubling. But as I've tried to point out, disruption is not the problem. It's the symptom. The problem is discrimination. Discrimination against conservatives. Against Christians. Against Jews. Against anyone disdained by cultural elites.

Not only did Yale refuse to do anything about the disruptors—they did precisely the opposite: They threatened to punish a conservative student for sending an email announcing a Federalist Society event.

So I announced that I could no longer in good conscience hire law clerks from Yale Law School. I pointed out that many judges would obviously refuse to hire from a racist law school.

So if it's okay to stand up against racism, why not for freedom of speech? Why can a judge oppose discrimination based on race, but not religion?

I also pointed out that many judges are obviously willing to hire only from a small group of so-called elite law schools. So they're already boycotting the overwhelming majority of law schools. And if it's okay for judges to boycott non-elite law schools, then surely it's okay for judges to extend that boycott to include intolerant law schools as well.

Finally, I pointed out that, if enough of us did this, then we'd never have to actually institute the boycott. The intolerance would stop in a heartbeat. Because we all know that law schools are strongly motivated to maximize the number of their law students placed in judicial clerkships.

Those who have written extensively about wokeism and intolerance—folks like Vivek Ramaswamy and Ilya Shapiro and Senator Ted Cruz—they have all come out in strong support of the boycott.

By contrast, when I made my pitch to my colleagues in the judiciary, I didn't just lose—I lost badly. A handful of federal trial judges across the country expressed strong support. But out of the 179 federal circuit judges nationwide, only one other circuit judge agreed to join me—Lisa Branch of the Eleventh Circuit. Now, I've written plenty of 1 against 16 dissents on my court. But this was the first time that I've ever lost 2 to 177.

But you know what? If judges don't want to do this, fine. I've learned a lot about judicial personality in my eight years on the bench. If judges want to say that, as a matter of principle, we should never engage in boycotts, okay then.

Here's my problem. Just last year, when the Heritage Foundation was charged with antisemitism, a number of judges made clear that they would refuse to associate with the Heritage Foundation. And they specifically boycotted an event that would have featured the Heritage Foundation's work. There was even a whole panel of judges to talk about these issues during the most recent Federalist Society convention.

So just to review the bidding: It's okay to boycott Heritage. But you can't boycott woke law schools. Let's just be very honest about what's going on here. Let's be candid about the double standards that plague the judiciary. It's okay to boycott Heritage, because you'll never be punished for attacking conservatives. It's okay to boycott Heritage, because it's okay to virtue signal to cultural elites. It's okay to boycott Heritage, because judges who punch left are excoriated—but judges who punch right are celebrated.

It's these double standards that exemplify my longstanding problem with my branch of government. I never expected to become a judge myself. But before I took the bench, I was involved in the federal judicial selection process for over two decades, from the Justice Department, to the Senate Judiciary Committee, to the Federal Judicial Evaluation Committee in Texas. And based on my experience, I've come to learn one simple lesson about judicial selection: When you pick judges based on elite credentials, you'll get judges who will care only about elite approval. You'll get climbers, not fighters. Lawyers who aren't warriors—who are timid, not tough.

Law students often ask me: Why haven't more judges joined the boycott? Well, you'd be surprised how many judges have told me: Love what you're doing. Please keep doing it. But sorry I can't join you. You'd be surprised how many judges have told me: Well, if you can get other judges to join you, then I'll join you.

Look, I get it. There's safety in numbers. It's scary to be alone, or in the extreme minority. But Deuteronomy 20 tells us that, when you go to war, don't be afraid of an army greater in number than yours. Just worry about being on the right side, and the rest will take care of itself.

We should heed the words of Justice Thomas: North is still north. Right is still right. Even if you stand by yourself. We need judges to follow in the mold of Justice Thomas—judges who are willing to stand alone when necessary—judges who care more about principle than prestige. It's unfortunate what happened at UCLA Law School. And it's unfortunate that the judiciary won't do anything to help.

There is a lot of unpack here.

First, as I noted at the time, I supported Judge Ho's boycott of Yale, and later of Columbia. It is regrettable this strategy did not catch on more.

Second, Judge Ho is correct that other judges support him privately, but will not say so publicly. Judges are, by their very nature, cautious. They follow, but do not lead.

Third, Judge Ho alludes to the boycott of an event promoting the Heritage Guide to the Constitution at the Federalist Society National Lawyer's Convention, which I referenced in my resignation letter and other writings. I think you can distinguish between a judge personally boycotting a problematic think tank and a judge boycotting students who attend a problematic university, but that distinction is thin. Indeed, if the argument is that a boycott is never proper, both of these actions are inappropriate. The truth is that judges, like everyone else, choose who to associate with and who not to associate with. That is what a boycott is. The only difference is that Judge Ho and his colleagues make their views known publicly.

In the end, what can be done about campus disruptions? The answer, it seems, is nothing.

Let's Talk about Neal Katyal's TED Talk

He takes a shot at Michael McConnell as "that guy" and compares the Court's questions to Harvey AI.

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In November, I attended the oral argument in the tariff case. I wrote a lengthy post about how I perceived the case. Ultimately, my bottom-line prediction was wrong. Trump would not get to five votes, let alone four votes. But I did have the occasion to reflect on the advocacy in the case. Here is how I described Neal Katyal's performance:

[S]everal Justices seemed skeptical, and even frustrated by Neal Katyal's presentation. He was polished, but wooden. Far too often, it seemed like he was giving rehearsed answers, which were not entirely responsive to the questions that were asked. Katyal may have also misread the room, and came in far too overconfident after the Solicitor General sat down.

I then explained how Katyal frustrated several justices, including Justice Gorsuch, who ultimately ruled against the government. At one point, Gorsuch said, "Well, you're not answering my question, though, Mr. Katyal." When Gorsuch asked about the Indian Commerce Clause, Katyal said, "I don't know that I have a position on that. It maybe is a little too afield for me to…" I observed: "Who played Justice Gorsuch in Katyal's moots? Did no one bring up the Indian Commerce Clause? General Sauer addressed this point directly during his rebuttal, so the government was ready." At another point, Justice Barrett asked a question about licenses that Katyal completely missed. He said, "Sorry. Could you say that again?" Katyal then had to back off and say he didn't concede something. Barrett chided, "Okay" with a tinge of sarcasm.

I closed my post with a reference to Jason Willick's Washington Post editorial, urging Michael McConnell to argue the case. I wrote:

Prior to the argument, Jason Willick wrote that Michael McConnell should have taken the podium instead of Neal Katyal. He explained that the respondents should have selected the conservative McConnell over the "partisan liberal lawyer." With the benefit of hindsight, I think Willick was correct. Michael McConnell clerked with Chief Justice Roberts the term that Dames & Moore was decided. He served with Justice Gorsuch on the Tenth Circuit. He traveled in the same law professor circles as Justice Barrett. McConnell would have been uniquely situated to bring this argument forward. And it would have been so much more powerful for an actual proponent of the separation of powers to argue this case. Indeed, at one point, Justice Alito ridiculed Katyal for making a non-delegation doctrine argument that he likely would not raise in any other context. Alito said, "I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument." An uncomfortable laughter followed. Even Justice Kagan, who was Katyal's former boss, suggested that one of his arguments "cuts against" him.

I don't think Katyal was the right advocate for this job. If the government prevails, I think eyes will turn to him.

It's true that Katyal's side won, and he got 6 votes. But I don't think his advocacy had much to do with it. Any other competent member of the Supreme Court bar could have won that case. Indeed, I thought the Oregon Solicitor General, Benjamin Gutman, who had never argued before the high court, was more effective than Neal Katyal.

Anyway, I hadn't given much thought to the argument until I saw Katyal tweet about his imminent TED Talk:

Five months ago, I argued against the President's $4 trillion tariffs at the Supreme Court.

In 237 years, the Court had never struck down a sitting President's signature initiative. Legal scholars said it was impossible. Some of my own colleagues said it was impossible.

We won. 6-3.

But the real story isn't what happened in that courtroom. It's what happened in the months before. And its the subject of my TED talk, coming out tomorrow.

I had the best legal team in the nation, especially Colleen Roh Sinzdak, the most outstanding legal strategist I know. Huge thanks, too, go to the Liberty Justice Center (and in particular its fearless and hyper-intelligent leader Sara Albrecht), who organized the client small businesses, as well as to the brave small businesses themselves.

I also had four teachers preparing me.
A mindset coach who'd worked with Andre Agassi.
An improv coach who taught me that "Yes, and" works in Supreme Court arguments the same way it works everywhere else.
A meditation coach who taught me stillness.
And Harvey.

Harvey predicted many of the questions the Justices asked — sometimes almost word for word. Brilliant. Tireless. Occasionally insufferable.

Here's the catch: Harvey isn't a person.

Harvey is a bespoke AI I built over the last year with a legal AI company, trained on every question every Justice has asked in oral argument for 25 years, and everything they've ever written.

Tomorrow, TED releases my talk about what really happened — and what I learned standing at that podium.

AI can predict. AI can analyze. What AI cannot do is the one thing that actually won the argument.

Connect. Read the room. Hear not just a Justice's words, but her worry — and answer the worry.

That is the irreducibly human skill.
Find yours. Go deeper. In this age of AI, that's where your edge lives.

The talk goes live Thursday, May 7 at 11am ET: http://go.ted.com/nealkumarkatyal

What's the irreducibly human skill in your work — the thing AI can't touch?

Harvey is not the only thing insufferable about that tweet. Really, the posting looks like it was drafted by AI.  Could the Ted Talk be even worse? Yes, it can. I thought of how best to break it down, and settled on simply annotating the transcript. If you want to read on, please do, but  I won't blame you if you skip it.

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Tariffs

US Court of International Trade Rules Against Trump's Section 122 Tariffs

The 2-1 decision concludes Trump's massive new tariffs are illegal because there is no "balance of payments deficit" of the kind needed to authorize them.

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Today, the US Court of International Trade issued an important ruling striking down Donald Trump's massive Section 122 tariffs, imposing 10% tariffs on a vast range of imports from countries around the world. The ruling is a crucial decision protecting the constitutional separation of powers and blocking an extremely harmful policy. The ruling addressed two consolidated lawsuits challenging the tariffs - one  filed by the Liberty Justice Center  (the same public interest group that I worked with on the earlier case that led to the invalidation of Trump's  IEEPA tariffs by the Supreme Court) on behalf of two importers, and one brought by 24 state governments led by the state of Oregon.

Section 122 of the Trade Act of 1974 authorizes the president to impose up to 15% tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." Today's 2-1 decision rests primarily on the ground that the government failed to prove that there is any balance-of-payment deficit of the kind required by the statute:

Rather than identifying "balance-of-payments deficits" as that term was intended
in 1974, the [President's] Proclamation relies upon current account deficits, and a discussion of "a large and serious trade deficit." Proclamation No. 11012 ¶ 6; see also id. ¶ 7 (referring to deficits concerning the balance of goods and services as well as the balances on primary income and secondary income, all of which are part of the current account); id. ¶ 8 (noting the trade deficit). Although the current account (and the balance of trade as a component of the current account) are relevant to balance-of-payments deficits, they are distinct, and the statute recognizes the distinction.

As the majority opinion explains, the term "balance of payments deficit" was understood in the Act to cover the kinds of imbalances that occurred under the Bretton Woods fixed exchange rate system that existed up until 1973, under which the United States committed to exchanging gold for dollars at a fixed rate, and other nations committed to exchanging their currencies for dollars (also at fixed rates). More specifically, "[t]he legislative history of the Trade Act of 1974 reveals that Congress understood balance-of-payments deficits to refer, at the time, to deficits in (1) liquidity, (2) official settlements, or (3) basic balance." As the court notes, at the time the law was enacted, there was a great deal of uncertainty about whether the US might return to some form of fixed-exchange rate system, and this law intended to provide a safeguard in the event of that happening.

The Trump administration argued that the president should get broad discretion in determining what qualifies as a "balance of payments deficit." As the court explains, that would give him virtually unlimited power to impose tariffs under Section 122, and would thereby create a constitutional nondelegation problem:

Despite acknowledging differences in the 1974 measures of the balance of
payments as compared to modern measures… the Government seeks to defend the Proclamation by arguing that "balance-of-payments deficits" is a malleable
phrase… However, the Government's suggestion that what constitutes "balance-of-payments deficits" may change proves too much…. [I]f the President has the ability to select among the sub-accounts to identify a balance-of-payments deficit, unless every sub-account is balanced, the President would always be able to identify a balance-of-payments deficit…..

Such an expansive reading of the statute would raise a non-delegation issue, which in turn would prompt a constitutional question…. "[T]he canon of constitutional avoidance" provides that, when one of two statutory interpretations would raise a constitutional question, "the other should prevail." Clark v. Martinez, 543 U.S. 371, 380–81 (2005); see also Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (stating that the Court employs the nondelegation principle to interpret statutory text and give "narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional"); Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (stating that "[a] construction of the statute that avoids [an] open-ended grant" of authority that would implicate the non-delegation doctrine "should certainly be favored"); … The Government's preferred interpretation of the statute must therefore be disfavored. See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.")…..

Nondelegation and its relevance to constitutional avoidance are a major focus of the amicus brief I submitted in this case on behalf of the Cato Institute and myself. As explained in the brief, the government's interpretation of Section 122 would essentially give the president the power to use Section 122 to impose up to 15% tariffs at at virtually any time. We also argued that this violates the major questions doctrine (an issue today's ruling does not address).

While the majority correctly ruled that the Section 122 tariffs are illegal, it does not completely block their collection. Rather it imposes an injunction that covers only the two importers represented by the Liberty Justice Center, and the state of Washington (a plaintiff state that directly imports goods subject to the tariffs). The court ruled that the other 23 states lack standing, because they had not presented sufficient evidence to show they too import covered products directly. If this ruling on standing holds up, further litigation will be needed to block collection of Section 122 tariffs from other importers subject to them. But I suspect that many, if not all, of these other states do in fact import goods covered by the tariffs. If so, I hope they can present evidence to that effect, as the litigation goes on.

The dissenting opinion by Judge Timothy Stanceu argues at great length that the the majority's interpretation of the legislative history is wrong, and that the president deserves great deference in making Section 122 determinations. Significantly, he has no answer to the nondelegation and constitutional avoidance points covered above. Broad deference to the president would give him nearly unlimited power to impose Section 122 tariffs at any time, thereby creating a serious constitutional problem. In addition, for reasons I outlined in this article, it is a mistake for courts to give the executive sweeping deference when it comes to invocations of emergency powers that are supposed to be wielded only in extreme exceptional circumstances, thereby turning these authorities into a blank check the president can use at any time.

This litigation is likely to continue on appeal in the US Court of Appeals for the Federal Circuit and possibly the Supreme Court. I will likely have more to say about it in future posts.

For now, I am happy to see that the Court of International Trade got this right, and I congratulate my friends at the Liberty Justice Center on this important victory.

 

Property Rights

Important Takings Challenge to Los Angeles Historic Preservation Law "Monument" Designation

Historic preservation laws often violate constitutional property rights, and block construction of new housing.

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Property once owned by Marilyn Monroe in Los Angeles. (Pacific Legal Foundation/Latham & Watkins)

 

In Milstein v. City of Los Angeles, an important case currently before a federal court in California, property owners are challenging the use of a historic preservation to block virtually all development on their land. The Pacific Legal Foundation - a public interest law firm that works extensively on constitutional property rights issues - is representing the owners, and has a helpful description of the case (PLF is also my wife's employer, but she is not involved in this case):

In April 2026, Pacific Legal Foundation joined a federal lawsuit over a home once owned by Marilyn Monroe. The lawsuit aims to prevent the government from forcing individual property owners to shoulder the financial burden of public historic monuments.

The case began in 2023, when a California couple bought an unoccupied, deteriorating property on a dead-end residential street, intending to demolish and redevelop it after purchase. They applied for the appropriate permits, which the City of Los Angeles granted without objection after a standard 30-day hold. One day later, a local government official filed paperwork to designate the property a historic monument. The City then revoked the permits and approved the historic designation, rendering the property untouchable to its new owners, Brinah Milstein and Roy Bank.

To justify abruptly declaring the property a public monument, Los Angeles cited a former resident. Marilyn Monroe had owned the home for 157 days before her death in 1962. But few traces of the star remain today because the City ignored the property for over 60 years—without once raising a preservation concern—while 14 successive owners freely renovated both the home and grounds, eradicating any trace of Monroe's time there.

The new historical designation prohibited the homeowners from using their own property—even banning repairs to damaged features without the approval of the City's historical commission. It also left the homeowners facing a litany of threats to their safety. Although the City had declared the entire property a public monument, there was no way for the public to access the derelict house within its gates. Undeterred, fans flew drones overhead, trespassers scaled the walls, and burglars broke in hunting for traces of the property's celebrated former tenant.

Milstein and Bank tried to work with the City to restore their property rights, offering to personally pay to relocate the home to create an accessible public museum. The City refused, leaving no remedy but the courts.

In January 2026, the homeowners filed a federal lawsuit arguing that the City had violated their Fifth Amendment rights by failing to provide them just compensation for turning their property into a public monument, eradicating all viable economic uses for the property, and causing the public to trespass to view the new "monument."

Historic preservation laws exist in numerous jurisdictions around the country, and are often used by "NIMBY" activists to block development, thereby preventing construction of affordable housing, and exacerbating racial segregation. In many cases - including this one - the sites in question actually have little or no genuine historical value.

This case is a particularly egregious one because the "monument" designation destroys virtually all the property's economic value, and that site has no genuine historical value, because subsequent owners destroyed virtually all trace of Marilyn Monroe's brief occupation of the house. As the plaintiffs' complaint explains, the former circumstance renders the designation a taking requiring payment of compensation under the Supreme Court's 1992 ruling in Lucas v. South Carolina Coastal Council, which held that regulations that forbid all economically valuable uses of a property automatically qualify as "per se" takings.

In addition, as outlined in my article on "The Constitutional Case Against Exclusionary Zoning" (coauthored with Joshua Braver), the property right protected by the Takings Clause of the Fifth Amendment includes the right to use property, which in turn includes the right to build various types of new housing. Thus, most regulations severely restricting housing construction should be considered takings under the original meaning of the Takings Clause, and also from the standpoint of various living Constitution theories of interpretation. I furthered covered the importance of the right to use in this recent book chapter.

Hopefully, this case will be the beginning of stronger efforts to enforce constitutional constraints on historic preservation laws. That's essential both to protect the rights of property owners, and to eliminate obstacles to the construction of badly needed new housing in many communities.

What about the (comparatively rare) cases where local governments seek to preserve a property with genuinely great historical importance? The answer is they can use eminent domain to take such property, so long as they pay compensation. For example, in United States v. Gettysburg Electric Railway Co. (1896), the Supreme Court ruled that the federal government can use eminent domain to take property in order to preserve the Gettysburg Civil War battlefield. The requirement of paying "just compensation" both helps protect the rights of property owners, and incentivizes government to limit historic preservation mandates to those areas where there really is a great historic value to protect. Gettysburg qualifies, while the property at issue in the Milstein case does.

People interested in constitutional property rights and housing policy would do well to keep an eye on this case.

Politics

How the Declaration of Independence Captured American Hearts and Minds

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[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

That Abraham Lincoln, our most American of presidents, "never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence," our most American of documents, seems only appropriate. That Lincoln was both a political philosopher and political genius may be enough to explain why the lanky rail-splitter from Illinois repeatedly invoked the Declaration, even before entering the political arena and when he had no expectations of returning to political office. Like his contemporaries, however, Lincoln grew up surrounded by images of the Declaration, keeping it a living document in the minds of Americans. In this 250th year of Independence, understanding the Declaration's prevalence as a cultural and material object in the first half of the 19th century may help explain how, after decades of relative obscurity, it became the undisputed expression of the American creed that we celebrate today.

The quote that opened this post is from Lincoln's speech at Independence Hall, on February 22, 1861. Traveling by train from his home in Springfield, Illinois, Lincoln stopped in Philadelphia to address a crowd at the spot where the Declaration was signed. By now, with the Confederate States of America established, with their capital in Montgomery, Alabama, the Declaration was at the center of the great crisis that had been brewing at least since the Missouri Compromise of 1820, and more accurately, since July 4, 1776. By 1861, references and appeals to the Declarations principles came not just from the Republican president-elect, but from Confederate President Jefferson Davis and his Vice-President Alexander Stephens, in newspapers and polemicists in North and South. Though secession was a constitutional crisis, arguments both pro and con were infused with the spirit of the Declaration.

Such prominence for the Declaration would have surprised second-generation Americans. To them, the Declaration was a relic of the Revolution, an honored but largely ignored document. It had done its job announcing the Colonies' separation from Great Britain; after that, the job of governing was the preserve first of the Articles of Confederation and then the Constitution. In the first decade of the 19th century, John Adams' Federalists forbore from honoring the Declaration on July 4, while Thomas Jefferson's Democratic-Republicans celebrated both the document and its drafter. Few on either side, however, saw it as having much of a role to play in an America a full generation away from Independence.

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Second Amendment Roundup: A Tale of Two Waiting Periods

The First and Tenth Circuits conflict on whether “cooling-off” periods violate the text of the Second Amendment.

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On October 25, 2023, 18 people were killed in a mass shooting in Lewiston, Maine.  The killer's declining mental health was known to law enforcement since that May.  On July 6, although he owned other firearms, he legally purchased the firearm that he would use in the attack.  By August, he repeatedly threatened members of his Army Reserve unit that he would "shoot up" the base.  He was hospitalized for psychological evaluation but released.  Two months later, he carried out his nefarious threats at a bowling alley and a cafe.

In 2024, the Final Report of the Independent Commission to Investigate the Facts of the Tragedy in Lewiston was released, faulting both the military and law enforcement for taking no action to disarm and hospitalize the killer.

Before the Commission report was even released, the Maine legislature enacted a statute targeting any person who would buy a firearm: "Waiting Period. A seller may not knowingly deliver a firearm to a buyer pursuant to an agreement sooner than 72 hours after the agreement."  As the timeline of events indicated, no relation existed between the perpetrator's vile acts taking place six months earlier and the 72-hour firearm transfer waiting period.

In Beckwith v. Frey, decided on April 3, the First Circuit reversed the district court's issuance of a preliminary injunction against enforcement of the new law.  For those needing a firearm for protection against an immediate threat, not to worry.  The court found it relevant that the Maine Coalition to End Domestic Violence submitted a statement warning that potential victims not obtain firearms for protection as the firearms were more likely to be used against them, and anyway the Coalition offered "services" to keep victims safe during the seventy-two-hour waiting period.  That must have been reassuring to battered spouses facing death threats.

In the opinion for the court, Judge Seth Aframe held that "laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment's 'plain text,'" which only "means to have and carry guns."  Since the law regulates activity that takes place before that, it is "outside the Second Amendment's plain text."  Under that logic, nothing in the text of the Amendment would preclude a law that simply banned absolutely the delivery or transfer of a firearm from one person to another.  One's right to keep and bear arms does not imply a right to obtain them.

Plaintiffs, the court continued, thus had the burden to show that the law was "abusive" in line with Bruen's footnote nine.  The court read footnote nine to mean that "the full two-step analysis did not apply to 'shall-issue' laws because these laws delay, but do not deny, licenses while states ensure that guns are being carried by law-abiding and responsible citizens."  However, the Supreme Court only stated in footnote nine that "shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'" It added that, "because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry."  Wait times must thus be keyed to requirements like a background check, not just waiting for its own sake.

The Beckwith court next turned to Heller's statement that nothing in the opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."  The court read "longstanding" to modify only "prohibitions," not "laws imposing conditions," and so the waiting period need not be longstanding.  (That issue may be moot, as Bruen requires Founding-era analogues.)  And it said that a "condition" need not be a particularized criterion that an individual must meet – the waiting period is itself a condition.

Finally, Beckwith stated that in other contexts, the Supreme Court "strictly scrutinizes laws that directly restrict the exercise of fundamental rights but often reviews more deferentially laws that only impose incidental burdens on the exercise of those rights."  It mentioned the First Amendment, but did not venture to suggest that the Supreme Court would approve a waiting period per se for exercise of any right protected by the First Amendment.

Ortega v. Grisham (10th Cir. 2025), an opinion by Judge Timothy Tymkovich, is in stark contrast with Beckwith.  Ortega invalidated a New Mexico statute providing that "[a] waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer." The court held that "the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text."  When the text authorizes an act, it implicitly authorizes any necessary predicate of the act.

Moreover, Ortega continued, Heller's reference to "longstanding prohibitions" modified "laws imposing conditions and qualifications on the commercial sale of arms." The waiting period is not a longstanding prohibition and it is not limited to commercial sales.  Furthermore, "It is not a condition because it cannot be met by any action, and it is not a qualification because it is universally applicable…. The sale happens regardless, and the waiting period is just an artificial delay on possession."

Nor could the state meet its burden to show that the law had appropriate historical analogues, including intoxication laws, license and permitting regimes, and targeted group bans on firearm carry or possession.  The law assumes that "anyone seeking to purchase a firearm can be presumed irresponsible or non-law-abiding, purely by dint of their intention to purchase a firearm."  That contrasts with the purpose of shall-issue licensing regimes and background checks which have the purpose of assuring that firearm purchasers are responsible, law-abiding citizens.

So we can add waiting periods to the growing list of Second Amendment restrictions that the Supreme Court should resolve, either by a case on point or a principle of general applicability.

It's worth recalling how "cooling off" periods came to national attention as a panacea for violence committed by the mentally deranged.  John Hinckley, Jr., purchased a revolver and shot President Ronald Reagan five months later.  (Ironically, the attempted assassination took place at the same Washington Hilton Hotel where an assailant sought to shoot President Donald Trump and cabinet members on April 25.) To solve that problem, Handgun Control Inc., later renamed the Brady Center, championed a seven-day waiting period on handgun purchases, albeit without a background check.  The NRA supported an instant background check on all firearm purchases from FFLs instead.

The result was the misnamed Brady Handgun Prevention Act of 1993.  Its interim provision, 18 U.S.C. § 922(s), purported to conscript state law enforcement officers to conduct background checks on handgun buyers, who could be cleared right away or within no more than within five days.  I was honored to argue Sheriff Jay Printz v. U.S. (1997), in which the Supreme Court held that Congress may not command the states to administer this (or any other) federal regulatory program.

The permanent provision of the Brady Act, § 922(t), established the National Instant Criminal Background Check System (NICS).  NICS provides for immediate transfer of a firearm, but may delay approval of the transfer for not more than three days, if NICS does not find that the transfer would violate federal or state law.  Because it created an instant check and no waiting period, the "Brady" Act may as well have been named the "NRA" Act.  But that's all water over the dam now.

Politics

The Spirit of the Declaration, Part 2

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[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

To the delegates of the Continental Congress, the Declaration of Independence did not reflect abstract ideas. To begin with, it was a pressing piece of administrative business after the vote for Independence on July 2, necessary for legitimizing the American struggle against King and Parliament, as well as a means of garnering foreign support, primarily from France. Yet it also was a covenant invoking the Creator and identifying a people that it hoped to unite. This covenant was instituted to defend against tyranny and maintain a specific political community in its traditional rights. Its sanction came from a righteous cause, and as Congress began to edit Thomas Jefferson's draft on July 2 and 3, it found itself not only tightening his argument, but also making more explicit the divine sanction that underpinned the document.

Grounded in natural rights theory, English common law, classical thought, and Judeo-Christian theology, the Declaration expressed the specific kinds of liberty and equality understood by eighteenth-century men of property and learning. It eloquently asserted the traditional liberties of Englishmen, drawing the distinction between positive rights granted by governments and natural rights derived from God. This was a defense of man "in virtue of his nature," as later expressed by the political philosopher Harry Jaffa. The Declaration described rights that could not be "alienated" or surrendered to any person or government, especially one failing to uphold its responsibilities to the people it sought to control.

A document so radical as to indict a king and declare all men equal was also extremely conservative. Liberty seemed a straightforward idea, but equality was a far more complicated concept than Jefferson's famous phrase expressed. Equality was not an end in itself, but was a feature of liberty, in the sense that humans had equal rights that had to be protected. In the political sphere, equality was necessary to the preservation of those God-given liberties that were both individual and communal.

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Free Speech

Restricting Speech By Purportedly Protecting Children

Around the world, governments are censoring speech with the stated goal of shielding youth from online harms.

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While governments around the world have imposed speech restrictions to fight misinformation and hate speech, they also have attempted to curb free speech for a less controversial reason: protecting children. But many of these restrictions stem from vague, unspecified, or speculative harms and corral wide swaths of speech that do not harm children. Censoring speech in the name of protecting children is not a terribly new phenomenon, especially in authoritarian countries. In 2012, for instance, Russia's parliament passed a law allowing the country's media censorship agency to unilaterally blacklist websites and take them offline, without any court approval. The lawmakers' justification was protecting children from online harm, but civil liberties groups correctly predicted that the government would use these powers to curb far more speech. In recent years, such efforts have moved beyond authoritarian countries and taken hold in Western democracies.

The United States has seen repeated attempts to curb speech in the name of saving the children. Although they have failed, governments have continued to try over many decades. In 1969, the US Supreme Court struck down the Des Moines, Iowa, school district's ban on black armbands worn to protest the Vietnam War, writing that "state-operated schools may not be enclaves of totalitarianism." In 1997, the Supreme Court invalidated much of the Communications Decency Act, which criminalized the online transmission of "indecent" content to minors, writing that the "interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." And in 2011, the court struck down a California law that banned sales of "violent video games" to minors, writing that the First Amendment does not give the government "a free-floating power to restrict the ideas to which children may be exposed."

The moral panic did not stop with those cases. Across the country, states are scrambling to address the harms associated with minors' use of social media. Many high-profile commentators and politicians have criticized social media for harming the mental health of teenagers, though there is substantial debate as to whether they have presented sufficient evidence of causation. In May 2023, then-Surgeon General Vivek Murthy issued an advisory on social media and youths' mental health: "The most common question parents ask me is, 'Is social media safe for my kids?' The answer is that we don't have enough evidence to say it's safe, and in fact, there is growing evidence that social media use is associated with harm to young people's mental health."

States have stepped in to try to regulate social media. Among the highest profile recent attempts is Utah's Minor Protection in Social Media Act, which the state legislature enacted in March 2024. The Utah law requires social media companies to "implement an age assurance system to determine whether a current or prospective Utah account holder on the social media company's social media service is a minor." For minors who have accounts, social media companies must impose a number of restrictions, including setting "default privacy settings to prioritize maximum privacy," limiting direct messaging abilities, disabling search engine indexing of their profiles, and limiting a minor's ability to share content with others. Those privacy settings cannot be changed without verifiable parental consent. The law also requires social media companies to disable functions that "prolong user engagement" for minors, such as autoplay functions.

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More

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1

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Open Thread

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US Court of International Trade Rules Against Trump's Section 122 Tariffs

10

Important Takings Challenge to Los Angeles Historic Preservation Law "Monument" Designation

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