Do you have a right to privacy on public roads? Hoover fellow and Stanford legal scholar Orin Kerr joins me in this episode to discuss Flock cameras, the networked license plate readers fueling debate over police surveillance. We discuss how the Fourth Amendment applies to tracking people's movements; whether police should need a warrant to search camera databases; how to balance investigative benefits with the potential for abuse; and what we still don't know about these tools' effectiveness in protecting public safety.
Jane Bambauer, my regular cohost, couldn't join us this episode, but will be back as usual in the next one. And also check out our past episodes:
the court suggests that a narrower law, which only requires removal and nondisclosure after the plaintiff makes a specific demand, may be constitutional.
From today's opinion in Jackson v. Thomson Reuters Am. Corp., by Fourth Circuit Judge Paul Niemeyer, joined by Judges Steven Agee and Pamela Harris; the law covers :
West Virginia's Daniel's Law …, which is designed "to enhance the safety and security" of judicial and law enforcement officials, prohibits the disclosure by any person or entity of the home addresses or unpublished telephone numbers of … {"any active, formerly active, or retired judicial officer, prosecutor, … public defender, … or law-enforcement officer"} if a reasonable person would believe that such a disclosure would create a risk of harassment or harm. The law authorizes protected persons to bring a civil action for damages….
As distinct from the Daniel's Laws in other States, … West Virginia's version does not require that the Covered Person, upon discovering an improper disclosure, notify the person or entity that disseminated the information and request that the person or entity delete the information before liability arises. In addition, for liability to arise under West Virginia's version, the person or entity need not know that they have disclosed a Covered Person's information. The only limiting principle of § 5A-8-24(e) liability is that the information must have been disclosed "under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property." …
For generations now, home addresses and telephone numbers have been disseminated to the public, initially through Whitepages and Yellow Pages and now through "people search" services on the Internet. The public has thus long had the facility to look up the name of a person and obtain that person's address and telephone number. Sharing that information has been the gateway to communication and the exchange of ideas or messages that have long been protected by the First Amendment. In the digital age, such information may now be shared with greater efficiency, but the tradition continues with the understanding that it is protected speech.
In a similar vein, it has long been custom and practice to record for public examination the names and addresses of persons buying, selling, and financing real property. And it has been the tradition to share publicly information about taxes, appraisals, liens, and voting.
To be sure, while the dissemination of such information is protected speech necessary to the exchange of ideas, it can also contribute to abuse and the pursuit of harmful and, indeed, malicious ends, as exemplified by the murder of Daniel Anderl. To address such abuse, governments have enacted laws like Daniel's Law in an effort to restrict the dissemination of home addresses and unpublished telephone numbers of specified public officials who serve in roles important to society. And the parties here agree that those governments have a compelling interest in enhancing the safety and security of such officials. The task, therefore, is to draw an appropriate line between protecting the dissemination of such information while, at the same time, excepting from dissemination the same information when it creates a potential for harm of specified public officials.
Last week, President Trump signed into law the Romance Scam Prevention Act that Congressman David Valadao (CA-22) introduced and that received bipartisan sponsorship. In short, this new federal law requires dating apps and services to notify users who have interacted with someone who was removed for fraudulent activity.
The scale of romance scams is enormous, with Americans losing $1.5 billion in 2025 as per the FTC and global losses coming in yearly at over $1 trillion. Dating apps play a significant role in the phenomenon because they present predators with the perfect pool in which to fish for victims. According to a year-long investigation whose results were released in recent weeks, U.S. Sen. Maggie Hassan concluded that Match Group has greatly lagged behind in its efforts to implement the best technological safeguards available. This is especially relevant because Match Group (which controls most of the best-known dating apps such as Tinder, Hinge, and OkCupid) continues to dominate the dating app market and hence its failures put many users at risk.
The new legislation may help users who are still in touch off-app with fraudsters who have been removed. That is a very narrow slice of users, however, and the system largely depends on whether dating apps effectively remove said fraudsters in the first place. The Romance Scam Prevention Act, however, places no obligations on apps to remove fraudsters or to prevent their joining apps in the first place. It is theoretically possible that the passage of even this fairly weak dating-app-related legislation, in conjunction with the issuance of Sen. Hassan's report, will put some pressure on apps and signal that stricter laws could follow if they don't improve their safety measures. As of now, however, the new law itself is unlikely to stop more than a minimal percentage of romance scams.
Last, it is worth mentioning that financial harm to dating app users, while very important, is far from the only damage resulting from dating apps' continued lackluster use of safeguards. For a crucial example, according to a Columbia Journalism Investigations survey, one third of women who use dating apps report having been sexually assaulted or raped by someone they met on an app. Neither the Romance Scam Prevention Act nor other congressional action so far addresses these many acts of violence or other related harms.
The Supreme Court is asked to review several thousand cases each year. It agrees to review fewer than 1% of them. It takes four votes of the nine to decide to review a case. (The grant of review is generally called a "grant of certiorari" or just a "cert. grant.")
Sometimes Justices write opinions dissenting from a denial of cert., arguing that the Court should have taken the case. And sometimes they write opinions respecting the denial of cert., explaining why it made sense to deny review in this case but noting that the Court ought to consider the question in future cases.
Such opinions are often solo opinions, and are sometimes signed by two or three Justices from the liberal or conservative wings of the Court. But it turns out that Justices Sotomayor and Gorsuch have also jointly filed nine such opinions, eight just for themselves and one for themselves plus Justice Kagan. All of them, it seems to me, at least suggest that the Court ought to move the law in a somewhat more government-restrictive direction (loosely speaking); most of them specifically point to somewhat broader constitutional rights protections. Prompted by two such opinions earlier this month, I thought I'd note the cases and the issues they involved.
The New York Times published more excerpts from Bob Woodward's new book. It seems that Woodward has material from Justices Breyer and Kagan:
Mr. Woodward also writes about encounters with more recent justices. He reports that his wife, Elsa Walsh, a former journalist for The Post and The New Yorker, sat next to former Justice Stephen G. Breyer at a dinner and he told her that he was "forced out" to make way for someone younger on the court.
He also recalls running into Justice Elena Kagan at a Washington party in 2023. Justice Kagan expressed admiration for "The Brethren" and Mr. Woodward noted that the main point was how the ideological center of the court in that era dominated. "Yes, I prefer it that way," Justice Kagan said. "That's exactly what it should be."
When he asked her if she was happy on the court, Justice Kagan said no, she was not, given the situation.
I don't think Justice Breyer gets to complain to a reporter's wife about being pushed out. It was his choice. No one forced him to step aside for Justice Jackson. But he folded. By contrast, Justices Thomas and Alito resisted all of the pressure.
As for Justice Kagan, does she really want the Court to be governed by the "ideological center"? Would the center of the Court have been Merrick Garland? I don't doubt that she is unhappy.
I am pleased that my interview with the New York Times continues to resonate. James Freeman features the piece in the Wall Street Journal's "Best of the Web" column. It begins:
This column sometimes notes the shortcomings of the New York Times so it seems only fair to credit the Gray Lady when she gets it right. With refreshing humility and openness to constructive criticism, a Times editor considers the manner in which the newspaper addresses a speaker's point of view.
And it ends:
Kudos to Patrick Healy. Let's hope that people across the media industry will take Josh Blackman's criticism to heart.
Let's hope so!
After reading about Bob Woodward's new book this morning, I've reflected about the relationship between journalists and sources. I take very seriously my connections to reporters, though I never pretend they are friends who owe me anything. The bond is transactional, sometimes counterproductive, but often fruitful. Some of these relationships have developed over the course of nearly two decades.
Most reporters do not finish their career where they started. More often than not, they start at smaller outlets, and if they're successful, move up the ranks. I always take care to respond to journalists at smaller outlets, in part, knowing that that is a relationship I can foster over time. Indeed, one reporter who started out at the Houston Chronicle moved onto the Wall Street Journal. Other reporters who started out in print moved into TV. And os on.
You never know when a relationship with a reporter will come in handy. Over the years, I've had pieces of information that I could provide to just the right person at just the right time, only because of the relationship I've built. Anecdotally, I've noticed that the reporters who are best at fairly reaching out to both sides are the ones most likely to move up in the world. I hope the reporters at the Times can now set the tone for media balance, and it trickles down.
Texas National Guard members in Illinois (Brian Cassella/TNS/Newscom)
On October 23, in the case of Newsom v. Trump, the US Court of Appeals for the Ninth Circuit ruled Donald Trump's June 2025 federalization of the National Guard in Los Angeles was likely illegal. This decision has little immediate effect, because the National Guard deployment ended months ago, after the Supreme Court ruled against Trump in a related Illinois case. But it has important implications for judicial review of executive invocation of emergency powers to use the military domestically. Among other things, it emphasizes that such actions are reviewable, and the president should get only limited deference. It also adopts a properly restrictive definition of "rebellion" (which is one of the conditions that might justify federalization of the National Guard).
Trump federalized the Guard in response to anti-ICE protests. The district court ruled his action was illegal and issued an injunction blocking it. But the Ninth Circuit lifted the preliminary injunction, in a decision I criticized at the time.
The relevant statute 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:
1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States
Last year, the Ninth Circuit ruled (incorrectly, I think) that Trump's action might have been permissible under Subsection 3: a situation where "the President is unable with the regular forces to execute the laws of the United States." As the Ninth Circuit acknowledges in their most recent decision, this basis for Trump's actions was undermined by the Supreme Court's December ruling in the related case of Trump v. Illinois, which held that Subsection 3 can only be invoked when the president is authorized to use regular federal military forces to enforce the law, and those forces are inadequate. These circumstances do not apply to the anti-ICE protests in Los Angeles and Chicago.
No one claims that the situation in Los Angeles amounted to an "invasion" by a "foreign nation." Thus, in its most recent decision the Ninth Circuit considered whether Trump's actions were authorized by Subsection 2, which allows federalization of the guard when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States."
The majority opinion by Judge Jennifer Sung holds that the determination that there is a "rebellion" is subject to judicial review and can be invalidated " if it "did not reflect a colorable assessment within a range of honest judgment." I think this is overly deferential. For reasons I outlined in an article published last year, there should be little or no deference when the executive invokes extraordinary emergency powers. Still, the Ninth Circuit standard is far from a blank check, and does allow invalidation of executive actions where the claim of rebellion is blatantly wrong - as it was here.
Following the district court, the Ninth Circuit defined "rebellion" as "a violent, armed, organized, open and avowed uprising against the government as a whole." This differentiates "rebellion" from smaller-scale violence or other violations of law. I think that definition is largely correct. The court summarizes a wide range of historical evidence supporting it.
The Ninth Circuit also concluded that events in Los Angeles did not even come close to meeting that standard. There were some violations of law by protestors, and some small-scale violence. But no systematic effort to overthrow the government or anything close to it. If anything, both this issue and the definition of "rebellion" are easier calls than the court suggests.
Judge Sung, author of the majority opinion, is a liberal Biden appointee. But her opinion was joined by Judge Eric Miller, a conservative Trump appointee and onetime clerk for Supreme Court Justice Clarence Thomas. This suggests the issue here cuts across ideological and jurisprudential lines. Judge Mark Bennett, another Trump appointee, dissented, but mostly on procedural grounds.
Judge Bennett did also take issue with the majority's conclusion that if Trump's federalization of the National Guard exceeded his statutory authority, it also violated the Tenth Amendment, which reserves to the states or to "the people," those "powers not delegated to the United States by the Constitution." He argues that the power to call forth the National Guard is delegated to Congress by the Calling Forth Clause of the Constitution, which gives Congress power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." This is true enough. But in situations where Congress has not exercised that authority, states retain total control over their militia (of which the National Guard is the principal modern example), and that control is protected by the Tenth Amendment. Indeed, such control over state military forces is a central element of state sovereignty. Overriding it without proper constitutional authority qualifies as unconstitutional "commandeering" of state government forces. As the majority explains:
The federal government—whether the President or Congress—violates the Tenth Amendment by commandeering state personnel to enforce or administer federal law. Printz v. United States, 521 U.S. 898, 925 (1997) (Under the Tenth Amendment, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."). If, for example, the President commandeered state police to help federal officers enforce federal immigration laws, that would violate the Tenth Amendment….
California National Guard members are state personnel, unless properly federalized… The President purported to convert the Guard into federal personnel by issuing federalization orders. If those federalization orders had been valid, then the President would have deployed federal officers in Los Angeles, and no commandeering of state personnel would have occurred. But because the President lacked authority to federalize the California National Guard, the federalization orders were invalid, and the deployed Guard members remained state personnel….
In other words, because the deployed members of the California National Guard were not properly federalized, they remained the legal equivalent (for Tenth Amendment purposes) of the state police. And because the challenged executive orders compelled those state officers to help federal officers enforce federal law, the orders violated the Tenth Amendment….
The Tenth Amendment protects States against overreach by the "Federal Government," whether "by legislation or executive action." Printz, 521 U.S. at 925, 935. The President cannot command state officials to enforce federal law even if a federal statute would authorize him, under some other circumstances, to call those officials into federal service. If the statute did not authorize the President to federalize the California Guard members here…, then the federalization orders were invalid, the Guard members remained state personnel, and Defendants violated the Tenth Amendment by commandeering those state personnel to administer federal immigration laws.
Exactly so. The majority and dissent consider a number of procedural issues, which I will not try to address. The majority also parses a variety of relevant precedents in detail. I may have more to say about some of them in future writings.
For the moment, this decision has little immediate effect. But it sets an important precedent in favor of judicial review of executive invocation of emergency powers, and on the meaning of "rebellion."
Bob Woodward is publishing a new book, titled "Secrets," that reveals many of the reporter's sources. The Washington Post has published an in-depth profile.
Of special interest are the sources Woodward relied on with Scott Armstrong for The Brethren (1979).
In the memoir, Woodward clears up another decades-long mystery: Which Supreme Court justices talked to him for the 1979 bestseller "The Brethren"? The exposé of the inner workings of the nation's highest court under Chief Justice Warren Burger electrified Washington.
When the book was published, Woodward and his co-author, Scott Armstrong, disclosed that they had interviewed five of the nine justices on the court, as well as 170 former law clerks, but on the condition that they not be named. Given the court's reputation for maintaining a Sphinxlike silence, "The Brethren" ignited a guessing game in Washington and in legal circles around the country, as well as criticism over the book's heavy reliance on anonymous sources.
"Our use of unnamed sources was a huge point of controversy for the book, but in my 55 years of reporting experience, people rarely shared secrets on the record, particularly at the time something is going on," Woodward writes in his memoir.
Nearly a half-century later, Woodward finally names the five justices who granted interviews: Potter Stewart, Lewis Powell, Byron White, Harry Blackmun and William Rehnquist (all are now deceased). Woodward's memoir explains how he and Armstrong painstakingly cultivated the justices and their former clerks as sources. The authors kept long memos about the interviews, which Woodward draws on to quote the justices at length in his new book.
It is curious that Woodward's sources were all the conservatives on the Court. (During the late 1970s, even after Roe v. Wade, Blackmun was still considered a conservative.) Woodward apparently did not talk with Justices Brennan, Marshall, or Stevens. Indeed, throughout the entire WaPo piece, nearly every one of Woodward's sources were conservatives. (I'll go through more of them below). I wonder what Chief Justice Burger would think if he knew that the other three Nixon appointees were the sources of the leaks.
Yet, even if Brennan did not talk directly to Woodward, one of Brennan's clerks leaked the critical document about the Watergate Tape Case. Steven Goldberg clerked for Brennan during the 1974-75 Term. Goldberg's co-clerk was Judge Marsha Berzon.
Woodward also tells the story of how got his hands on an internal Supreme Court document that was a cornerstone of "The Brethren": a confidential 75-page case history chronicling the justices' tense deliberations in U.S. v. Nixon. In an 8-0 decision, the court ruled in the 1974 landmark case that Nixon had to turn over his secret tape recordings in response to a federal subpoena and that, most importantly, the president is not above the law.
In "Secrets," Woodward writes that he learned about the existence of the case history from Steven P. Goldberg, a former Supreme Court law clerk who died in 2010. But Goldberg was adamant: He couldn't possibly give Woodward a copy.
Woodward wheedled and coaxed and pleaded. Despite Goldberg's repeated protestations, Woodward talked the clerk into letting him pay a visit to his home late that night.
Goldberg still refused to cough up the document, however, so Woodward suggested a compromise: How about you read it aloud while I take notes?
"My plan was to wear him out until I either had enough of it down or he eventually gave it to me," Woodward recalls.
With a sigh, Goldberg started reading from a comfortable living room chair. Woodward smiled and took notes — but he did so very, very slowly and kept asking Goldberg to pause.
After a while, Goldberg fell deeply asleep. Woodward contemplated grabbing the case history from his lap and bolting out the front door, but "that seemed a little too far, even for me," he recalls.
Instead, he walked over to Goldberg, gave him a slight nudge and informed him that he would take the document and bring it back first thing in the morning.
Goldberg stirred with a look of "absolute exhaustion" on his face, according to the memoir. But the former clerk mumbled okay — and that was good enough for Woodward.
"Not wanting to disturb him more, I gently took it. I did not want to run out the door but I moved swiftly," he writes. "If I was on a security camera, I wanted to be behaving properly, with whatever might be left of my dignity."
Woodward scampered home to read the whole thing. The case history proved invaluable, a "raw and unforgiving" and "Holy Grail" account of the court's inner workings.
Before returning it to Goldberg the next day, he stopped at The Post's newsroom to make a photocopy.
One wonders if Justice Brennan tacitly or expressly authorized this leak, so long as the document was not provided. While the Chief Justice would often warn that leakers would have their careers ruined, Goldberg did not suffer at all. He would become a law professor at Georgetown, advocating for a strict separation of church and state. Goldberg died in 2010.
I doubt Josh Gerstein had to take notes while someone read him the Dobbs opinion aloud.
There's more. Boyden Gray, a prominent conservative lawyer, was a regular source for Woodward:
One such leaker was C. Boyden Gray, who served as White House counsel to George H.W. Bush during Bush's presidency and vice presidency. Woodward describes Gray, who died in 2023, as "one of my lifelong secret sources." He also lived just a block and a half away from Woodward in Georgetown, which made passing sensitive documents much easier.
One Friday in February 1987, as the Iran-contra scandal was unfolding, Gray walked over to Woodward's house bearing a gift: a three-page memo labeled "top secret" regarding an Israeli official involved in the sale of U.S. arms to Iran. According to Woodward, the document contradicted the Reagan administration's public assertions about the scope of its contacts with Iran, and even he wondered at first why Gray had given it to him. He said Gray later explained that "he knew the memo would get out" eventually and "he wanted to get ahead of it."
Woodward also reveals that President Nixon's lawyers leaked information about their client.
As Nixon's defense counsel, Buzhardt listened to hundreds of hours of conversations that the president had secretly taped in the White House but resisted turning over to prosecutors until he was finally ordered to do so by the Supreme Court. In public, Buzhardt vigorously defended Nixon and was seen as "the operational man in charge of the Watergate cover-up," according to Woodward. In private, however, his assessment of Nixon was caustic.
"He flat out lies," Buzhardt told Woodward during one of 17 interviews that took place in 1974 and 1975. "He still to this day thinks that he was not involved in the cover-up."
During the height of Watergate, Garment regularly met Woodward for interviews at a Chinese restaurant in downtown Washington and once brought along a briefcase filled with what the lawyer called "the really incriminating tapes." In the memoir Woodward doesn't say whether he was able to listen to them, but he writes that Garment called the recordings "infantile" and "sick." Through them, he added, Nixon was "letting America into the toilet of his mind."
Of all the leaks, these bother me especially. Lawyers have a duty of confidentiality. If they no longer could ethically represent a client, their recourse was to withdraw. It is unconscionable for lawyers to defend their client in court while undermining their client in the press. You wonder why Trump relies on lawyers he can trust. Because those he cannot trust are likely to attack him in the media. Not much has changed.
I've pre-ordered the book, which will be released in November. I am curious about details concerning his SCOTUS chats.
From E.B. v. J.R., decided Aug. 20 by Massachusetts Appeals Court Justices Sabita Singh, Rachel Hershfang, and Chauncey Wood:
The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care. The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice….
When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "that the defendant had committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.'" …
Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either "true threats" or "fighting words." True threats include "direct threats of imminent physical harm" and "words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." Fighting words are limited to personal insults that are inherently likely to incite a violent reaction….
The plaintiff's affidavit described the following four alleged incidents of harassment.
First, in July 2024, while the plaintiff was working at the zoo, the defendant began "yelling and screaming" at the plaintiff that she "should lose [her] job and right to be a veterinarian[,] … that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals."
From Judge Virginia Kendall (N.D. Ill.) in U.S. v. Holmes:
After the Government filed a Criminal Complaint against Holmes on March 13, 2026 , a grand jury returned an Indictment charging Holmes with violating 18 U.S.C. § 875(c) on April 7, 2026. The Indictment alleges that Holmes operated the X account "@MapleStCapital" that displayed an American flag emoji with the statement "END The Fed." The Indictment alleges that Holmes posted on that account several statements against the Jewish community and Israel, including: "The jew will be destroyed and discarded," "From the river to the sea every Jew will die," "You inbred people will all die," and "Die Jew."
On or about March 3, the State of Israel posted a video [on the account "@Israel"] that showed a billboard with the face of Ali Khamenei along with the statement: "The world is a better place without Khamenei." In that post, the State of Israel wrote: "It's a first step towards a better world." Holmes responded to this post from the State of Israel with the following message: "I'm going to shoot up a synagogue." It is that statement that the Government alleges violated 18 U.S.C. § 875(c)….
The Indictment alleges that:
TIMOTHY HOLMES, defendant herein, knowingly transmitted in interstate commerce a communication containing a threat to injure the person of another, namely, a post on X in which he wrote, in response to a post from "@Israel", "I'm going to shoot up a synagogue", and defendant transmitted the communication for the purpose of making a threat, knowing that the communication would be viewed as a threat, and recklessly disregarding a substantial risk that others would regard the communication as a threat….
Holmes asserts that his statement "I'm going to shoot up a synagogue" is not a true threat because it lacks sufficient specificity. Holmes maintains that his post was but a "generalized, albeit offensive, statement directed at an institution or building" that fails to rise to the level of a true threat because "[i]t does not identify a particular individual or group of individuals" and it also does not "specify a location, a time, or any target beyond the generic category of 'a synagogue.'"
President Donald Trump signed a proclamation on Friday that removes some Canadian products from tariffs imposed under Section 338 of the Tariff Act of 1930 and adds others, the White House said. The changes take effect Oct. 30.
Plywood sheets, some paper products, certain machinery and refrigeration equipment, and certain packing crates and boxes come off the list. Some valves, along with carpets, waste products and other goods, take their place.
The tariffs, set at 50% according to CNBC, apply whether or not a good originates under the U.S.-Mexico-Canada Agreement….
The fact that American businesses and consumers in states like Maine are suffering from the tariffs gives the lie to the notion that only foreigners are burdened by them. Trump's action here also underscores how the tariffs have become highly unpopular, and a drag on GOP prospects in the upcoming election.
While Trump may have (perhaps only temporarily) lifted some of the Section 338 tariffs, most remain in place. As noted above, he imposed additional tariffs on some goods, even as he lifted them on others. And the Section 338 tariffs are still still illegal for a variety of reasons I summarized in my previous post on the LJC lawsuit against them, as well as earlier writings:
I have previously written about why Trump's Section 338 tariffs are harmful and illegal. See my recent Montreal Economic Institute paper on this topic, and earlier pieces here, here, and here. To briefly summarize, the tariffs on Canada are illegal because 1) Section 338 has been superseded by later legislation, 2) even if Section 338 is still operative, Trump's tariffs do not meet its requirements because the Canadian actions they supposedly respond to do not "discriminate" against US goods, as the law requires, 3) Trump's tariffs do not "offset" the Canadian actions (as Section 338 also requires), but go far beyond that, 4) the administration's interpretation of Section 338 runs afoul of the "major questions" doctrine, and 5) if Section 338 is operative and does authorize the Trump actions, it would violate the constitutional nondelegation doctrine (which restricts delegation of legislative power to the executive).
The LJC complaint advances all five of these arguments. To prevail, they need win on only one.
In addition to illegally usurping congressional power over taxation, the Trump trade war against Canada damages our economy and poisons relations with a key ally. Courts should strike it down, just as they did with the IEEPA tariffs and the more recent Section 122 tariffs. They should also invalidated the massive Section 301 "forced labor" tariffs, which have been challenged in three cases currently before the US Court of International Trade.
UPDATE: It's worth reiterating that giving one person the power to impose and lift tariffs whenever he feels like it is an affront to the rule of law.
Damien Charlotin, who runs the invaluable AI Hallucination Cases site (2200+ cases worldwide and counting) has a new one, AI Deepfakes in Court, listing 26 cases worldwide so far. His summary:
This database tracks decisions dealing with deepfakes submitted as evidence, averred or alleged, including texts and documents such as forms, records and correspondence. A failure to authenticate an exhibit is recorded separately from any finding that it was AI-generated.
It does not track cases about deepfakes as a subject: the focus is on cases started on any ground, where parties (allegedly or verily) submitted deepfakes as evidence to bolster their claims. This is distinct from using AI to fabricate citations, which is covered by the AI Hallucination Cases database, or using AI as evidence (e.g., to offer a translation or a common sense opinion), which is covered by the AI Evidence Cases database.
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The All-Argentina Issue is Here
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