The Volokh Conspiracy Archive

Today, the Society for the Rule of Law published my article on "The Case Against Mass Deportation," on its Checks and Balances substack. Here is an excerpt:

Since Donald Trump returned to the White House in January 2025, U.S. immigration enforcement and deportation operations have become more cruel and oppressive than they have been in many decades, if not ever - with victims including both immigrants and many US citizens. The best approach to curbing these abuses is cutting back on deportations more generally.

Since Trump returned to office in January 2025, Immigration and Customs Enforcement (ICE) and other federal officers have killed at least three U.S. citizens (two in Minnesota and one in Texas), wounded numerous others, and detained hundreds illegally, usually after mistaking them for illegal migrants. ProPublica found some 170 cases of illegal detention of citizens through October 2025. But that is almost certainly a severe underestimate.

ICE and other agencies also make extensive use of racial profiling, which leads to detention and harassment of numerous U.S. citizens who are Asian, black, or Hispanic, or look like they might be and thus potentially suspect. The enormous extent of racial and ethnic profiling by ICE is shown by the fact that immigration arrests in Los Angeles County declined by 66 percent after a federal court order barring the use of such tactics (the ruling was eventually blocked by the Supreme Court, perhaps for procedural reasons). Conservatives and others who favor color-blind government cannot make an arbitrary exception for immigration enforcement.

Conditions in ICE detention facilities are often horrific, routinely featuring overcrowding, inadequate food and denial of essential medical treatment. Since the start of the present fiscal year in October, a record 29 people have died in ICE detention, even though the fiscal year is only about half over. The brutality and violations of civil liberties have been exacerbated by the administration's massive expansion of the number of ICE personnel (including hiring many poorly qualified people), and by its imposition of deportation quotas incentivizing arbitrary arrests with little or no proof. There have been so many illegal ICE detentions that courts have ruled against the administration in detention cases some 11,500 times, including thousands of decisions issued by Republican-appointed judges….

The abuses of the deportation system have increased significantly thanks to Trump's policies. But the system is cruel and unjust even under more conventional presidents. Illegal detention and deportation of U.S. citizens long predates Trump. Northwestern University political scientist Jacqueline Stevens estimated that the federal government detained or deported more than 20,000 U.S. citizens from 2003 to 2010…. Racial profiling is also not unique to the Trump era….

Ultimately, it is impossible to deport any large proportion of the estimated 13.7 million undocumented immigrants in the United States without arresting and detaining many people with little or no due process….

Ultimately, the only way to end or greatly reduce that brutality is to radically scale back deportation itself. There are a variety of ways to do that…..

The rest of the piece outlines a variety of potential reforms, such as these.

From Wenzler v. U.S. Coast Guard, decided today by Seventh Circuit Judge Michael Scudder, joined by Judges Amy St. Eve and Joshua Kolar:

James Wenzler posted a series of crass statements on LinkedIn while serving as a member of the Coast Guard Auxiliary and depicting himself in uniform. The Auxiliary investigated, told him to stop, and removed him from its ranks after he failed to heed its warning….

James Wenzler joined the Coast Guard Auxiliary in 2007. He held various positions over the years, eventually becoming a Vice Flotilla Commander. Wenzler publicized his affiliation with the organization on LinkedIn. His profile depicted him in uniform and represented that he served as the Auxiliary's Branch Chief for Human Resources.

In May 2022, a member of the public complained to the Auxiliary about Wenzler's LinkedIn posts. One of the posts accused certain Supreme Court Justices of being racist, and another included a crude remark about the Girl Scouts.

Here are the details on the posts, from the district court opinion:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson. Wenzler's responsive post read: "Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!" The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist. Wenzler's responsive post read: "Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies."

Back to the Seventh Circuit opinion:

Judge Eleanor Ross, who serves on the federal bench in Atlanta, engaged in multiple acts of misconduct. She carried on a secret affair with an Atlanta police department officer for nearly two years, repeatedly had loud sex in her chambers, lied about her trysts, and obstructed the investigation. Each of these actions warranted a public reprimand and an impeachment inquiry. But one of the more stunning allegations has flown under the radar: Judge Ross routinely signs judicial orders her law clerks prepare without even reading them. Indeed, it seems she never even talks about these cases with her clerks, so likely has no clue what she is even approving. Yet the council that reviewed this case found no misconduct.

Let me tell you a not-so-well-kept secret: most judges let their law clerks do far too much. Take it from my personal experience. I clerked in a federal district court for two years immediately after law school. The judge I clerked for, who recently passed away, was a dedicated jurist and an honorable man, but he let his clerks have far too much autonomy. At the time, I was overwhelmed with how many important decisions turned on my immature judgment. In hindsight, I cringe at my mistakes that the judge did not catch. Judge Ross will likely lose her judgeship, either through resignation or impeachment. But the public needs to take a closer look at judges who have abdicated the judicial power to unknown law clerks.

The Eleventh Circuit Court of Appeal's Judicial Council, which reviews misconduct complaints, interviewed six of Judge Ross's former law clerks. They explained that the judge's "longstanding practice was to handle all criminal case work without law clerk assistance." This choice makes some sense, as Ross was a former prosecutor. This work is also predictable. Virtually all federal cases wind up with plea bargains, so the most difficult work concerns calculating a defendant's sentence. This sort of judgment will be based in large part on experience and judicial philosophy. The judge I clerked for would allow law clerks to make recommendations but he always calculated the sentence himself after considering all the evidence.

In contrast with the criminal docket, Judge Ross had no oversight of the civil docket. All six clerks reported that Judge Ross "did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction." Moreover, "it was generally understood that" Judge Ross "did not wish to discuss substantive civil-case related issues with clerks." I suppose her time was better spent having loud sex in chambers.

To be clear, the Judge didn't talk to her clerks about cases before they were assigned, and didn't want to talk to the clerk while the cases were being considered. Worse still, it appears that the judge rubber-stamped virtually every civil order that came before her. The clerks relayed that Judge Ross "rarely, if ever, substantively edited civil orders the clerks drafted." Indeed, the clerks were "generally unaware as to whether the Subject Judge reviewed pleadings or draft civil orders." As proof, a law clerk "stated that on multiple occasions the judge emailed the clerk to docket an order within a few minutes of receiving it, indicating that the judge may not have had time to read it."

Most civil cases in the federal system are resolved on motions without the benefit of oral argument. Judge Ross was likely able to get away with ignoring her civil docket unless summary judgment was denied and the case went to trial. At that point, she would have to catch up. A career clerk "recalled one instance in which, during the middle of a civil trial, [Judge Ross] made a comment indicating that the judge had recently, for the first time, read the order denying summary judgment in the case." With good reason, the clerks felt "uncomfortable with the level of discretion they appeared to exercise in handling civil cases" especially "given their inexperience."

Judge Ross offered only a partial rejoinder to her clerks. Judge Ross conceded that she does not review any of the filings before assigning a case. Accordingly, she "does not offer clerks guidance, in advance, as to whether a motion should be granted or denied." The Judge maintained that she is "always available" to answer "substantive legal questions." Though it is unclear how much help she can provide if she never read any of the briefs. Judge Ross further "insisted that draft substantive orders are reviewed, and, from time to time, needed corrections are identified."

Indeed, it isn't even clear what "reviewed" means in this context. She admitted "making edits to between 30 and 40 percent of draft orders." So between 60 percent and 70 percent of the orders she signed had no edits. How often is any work product perfect when delivered? As any editor would tell you, the answer is never. If "corrections are identified" only "from time to time" then the judge is not reviewing documents at all. What about those orders that she edits? Does Judge Ross read the briefs, check the caselaw, or assess the legal arguments? Or does she simply proofread to find typos? I would wager she does little if any substantive work.

Today the Supreme Court summarily reversed an Eleventh Circuit capital case, Whitton v. Dixon. Justice Thomas dissented, joined for the most part by Justice Alito. The Eleventh Circuit issued a 60-page decision, but the Court found objectionable two sentences. As Justice Thomas points out in his dissent, the Eleventh Circuit can simply strip out those two sentences, and the outcome would remain unchanged. This seems to be the essence of harmless error. Why, then, did the Court waste everyone's time with a summary reversal?

Justice Thomas charges his colleagues with an inconsistent approach to summary reversal.

This Court has increasingly granted summary relief in certain cases based on lower court errors that seemingly had no effect on the outcome of the case. See Pitts v. Mississippi, 607 U. S. 1 (2025) (per curiam) (granting summary vacatur for man who sexually abused his daughter after likely harmless trial error); Doe v. Dynamic Physical Therapy, LLC, 607 U. S. 11 (2025) (per curiam) (granting summary vacatur after likely harmless state intermediate appellate court error). It would be one thing if this practice reflected the Court's consistent commitment to correcting legal error in all cases. But, in reality, this Court routinely declines to provide relief to law-abiding Americans when it would actually matter, even after lower courts conspicuously flout this Court's precedents in ruling against them.

Over the years, I've noticed this practice. The Court issues a narrow summary reversal on grounds that are easily surmounted, the lower court affirms the conviction, and then the Supreme Court denies cert. What's the point? Why waste so much time and effort on correcting an error that will not affect the outcome of the case. The Supreme Court often says its certiorari docket is not designed for error correction, but as usual, all the rules go out the window for capital cases. The murder in this case occurred in 1990. As often happens in capital cases, delay is the end and not the means.

Justice Thomas also flags specific cases where his colleagues denied certiorari, even as lower courts flouted the Supreme Court. First, he noted two post-SFFA affirmative action cases involving the Boston School Committee and Thomas Jefferson High School in Alexandria, Virginia. The Court refused to "correct a glaring constitutional error." Second, he pointed to the Court's refusal to revisit the Feres doctrine in Beck v. United States. (Justice Alito did not join this part of the dissent, as he did not dissent in Beck.) Third, Thomas cited two cases from Speech First that challenged campus bias response teams. Lower courts found there was no standing, and the Court did nothing.

I continue to think the Supreme Court's mandatory jurisdiction should be expanded. Too many important issues are being left unresolved, and the Justices offer no explanation why. This failure to take important cases is compound when the Justices expend their limited resources in summarily reversing a capital case where the outcome will not change.

From Judge Sanket Bulsara (E.D.N.Y.) Wednesday in Nazarenko v. Genalo:

On May 25, 2026, Respondents filed an answer to the [habeas] petition in this case. That response contained as an exhibit an INA § 236(a) Initial Custody Determination ("INA § 236(a)"). The document was redacted—including the date and time of the arrest of Petitioner and the "Discussion" outlining the basis for a finding of dangerousness. ICE took it upon itself to redact the document, claiming it had been "authorized for release on the condition that certain information, regarding the assessment of dangerousness, be redacted."

The Court immediately noted that the filing of such a document violated its Individual Practices. And importantly, there was no version of the document filed on the docket for the Court to view in unredacted form. In other words, ICE expected the Court to accept that it properly conducted an evaluation of Petitioner's dangerousness, and the basis for detaining Petitioner, but shield its rationale from the Court.

Such practices are repugnant to the rule of law, and ICE is warned that further obfuscation and misuse of sealing and redaction before the undersigned will lead to sanctions against the agency. The Court herein details the reasons why it will not tolerate such practices in the future.

[I am assuming that you all know the basic background of the Slush Fund "Settlement"; my earlier discussions are here and here.]

Things are definitely heating up on the Slush Fund front.

Even for a President for whom courtroom losses are a depressingly regular occurrence[1], and even putting aside the Order from D.D.C. requiring him to take his name off of the Kennedy Center, Friday was a tough day for our President.

First, in Floyd et al v. DOJ, the district court (ED VA, Judge Brinkema) enjoined the DOJ from "taking any further action pursuant to the creation or operation of the Anti-Weaponization Fund, including the transferring of money to the Fund; the consideration of any claims submitted to the Fund; and the disbursing of any funds from the Fund."[2]

And then a second court (SD FL, Judge Williams), re-opened the Trump v. IRS case (in which Trump had agreed to a voluntary dismissal of his claims), based on …

"… grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement.[3]" The court further ordered Trump to file a response to those allegations by June 12, "detailing his "position on . . . (1) the charges of collusion and whether the Parties are truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the victim of a fraud." (Emphasis added)

Do stay tuned. This is getting very interesting and is, potentially, very important. Coming at a time when our President is already in a weakening political position - an unpopular war, inflation, etc. - this looks like it may generate some push-back from Republicans previously willing to toe the MAGA line. The decision of the Republican Senate leadership not to vote on Trump's priority immigration budget before adjourning a couple of weeks ago was widely interpreted as a mini-revolt of sorts against the Fund, and Republican Senators have been unusually vocal in their condemnation of the Fund.*

*From Sen. McConnell ("Utterly stupid, morally wrong") to Sen. Tillis ("stupid on stilts") to Sen. Cruz ("a galactic blunder") to Majority Leader Thune ("I'm not a big fan").

My crystal ball is no clearer than anyone else's, but here are my predictions:

(1) The Anti-Weaponization Fund will never pay a nickel to anyone.

(2) Todd Blanche's days as Attorney General are numbered. This was all a pretty clever scheme to set up a Trump-controlled slush fund plus an immunity from any and all claims the IRS might be able to bring against our President and his family.

That immunity is a nice little bonus that was somehow omitted from the original "Settlement Agreement," an omission Blanche corrected in an "Addendum" dated just one day after the "Settlement Agreement" was executed. As alert readers may have noticed, the immunity has absolutely nothing to do with the "case" that Trump and the IRS were supposedly "settling".

And Trump would get all of this without anyone other than Donald Trump and Todd Blanche doing anything! No silly congressional "authorization" or "appropriation" needed!

It has Blanche's fingerprints all over it, and it looks like he may have been too clever by half. He has, rather than enriching Donald Trump, gotten him into some pretty hot water, and at the moment, at least, it doesn't seem as though the money spigot will ever turn on. If Blanche were hoping that this bit of legal legerdemain would help convince our President to remove the "Acting" from his title, I think he will be disappointed.

Memo to Republican senators: This really is a good issue to take a stand on. He'll primary you anyway, whether you lick his boots or not; just ask John Cornyn. Seems like a good time to stand up for the simple principle that even a President can't just take tax money for his own personal purposes.

[1] As I have said many times – because it bears repeating: Trump has lost orders of magnitude more cases in court in a year-and-a-half than any of his predecessors in their complete terms. Indeed, though I doubt that there's sufficient data to test this hypothesis, I wouldn't be at all surprised if he has already lost a greater number of cases than all of his predecessors combined. Ask your AI agent to list all of his losses if you think I'm exaggerating.

[2] Plaintiffs in this case are "former career Assistant U.S. Attorney and January 6th prosecutor Andrew Floyd, Professor John Caravello, City of New Haven, the National Abortion Federation [and] Common Cause," according to plaintiffs' counsel's website (Democracy Now). Their claim is that "the creation of the [Anti-Weaponization] Fund violates the U.S. Constitution, exceeds executive authority, unlawfully bypasses Congress's exclusive authority over federal spending and appropriations, and violates the Administrative Procedure Act."

One difficult issue in this case, and one that will surely be raised by the DOJ in its responses, is whether plaintiffs have standing to object to the creation of the Fund. I'm no standing expert, but it looks like a tough hill to climb, and I'm curious to see how the plaintiffs frame their argument that they have standing to bring these claims.

Interestingly, Public Citizen has filed a suit containing similar substantive claims in SD CA, on behalf of Allison Gill. Gill, according to the Complaint, was a vocal Trump critic who was targeted by the government and improperly subjected to a criminal investigation in 2019. The Complaint continues:

Plaintiff has been the subject of actions taken by the federal government that could constitute "Lawfare" or "Weaponization" and may be entitled to compensation and an apology from the Fund. Plaintiff thus has an interest in the Fund's establishment and operation, including an interest in ensuring that the Fund is legally sound, that Lawfare and Weaponization are appropriately defined to cover Plaintiff's claims, and that the procedures and standards through which claims are considered are fair and equitable.

It's a nice bit of legal jiu-jitsu - people subject to Trump's "weaponization" can sue and assert standing based upon their interest in being compensated by Trump's Fund!

[3] The allegations are contained in a Motion submitted to the court last week by 35 retired federal judges. [See here, and my discussion here]. According to the court's Order re-opening the case, among the allegations contained therein are

". . . the fact that the settlement in question includes a 'three-paragraph addendum' . . . [that] purports to 'forever bar and preclude' the United States from pursuing claims that could have been [otherwise] asserted [against] Plaintiffs,'), and the fact that Defendants did not 'even try[] to defend against Plaintiffs' claims' despite their active opposition to nearly identical claims in other litigation. Finally, the non-party movants assert that Plaintiffs' claims were "clearly untimely" and therefore untenable."

From Friday's decision in Watts v. Jones, by Seventh Circuit Judge Frank Easterbrook, joined by Chief Judge Michael Brennan and Judge Diane Sykes:

Two detectives investigating an inmate at the Wisconsin Secure Program Facility tried to speak with David Watts, another inmate, who had sent letters suggesting that he had valuable information about a murder and an attempted murder. One detective appeared at Watts's cell. He feared that the inmate under investigation would get wind of anything he said, so he refused to talk. Watts relates that, even so, he was threatened and harassed. Though no physical harm came to him, Watts filed this suit under 42 U.S.C. § 1983 seeking damages from the detectives for exposing him to risk.

The court concluded that such a claim was unavailable, at least in the absence of physical harm, but also had this to say on the earlier attempts to litigate the case under seal and with pseudonyms:

The district court entered an order sealing the litigation in large measure, which effectively created anonymity for the litigants and any potential witnesses. A motion to continue the sealing during the appeal led to a one-judge order denying that request but requiring anonymity all around. The result is that the parties have filed public briefs but not identified the persons involved. After hearing oral argument, this court now concludes that anonymity is inappropriate given this court's strong presumption that adult litigants must use their own names.

Suing under a pseudonym can often be quite valuable to a plaintiff; for instance, someone suing over alleged mistreatment by an employer may worry about becoming known as a litigious employee, and might therefore prefer to sue as a Jane Doe. But there's a strong presumption in our legal system against such pseudonymous litigation, and worry about professional or economic retaliation generally isn't enough to rebut that presumption.

But what if you start calling yourself Jane Smith in your everyday life, and then argue that you've therefore informally changed your name? People are often allowed to sue under names that aren't their official names in government documents. If you routinely go by Bill Jones, for instance, you can sue as Bill Jones, even if your official name is William A. Jones, Jr. Likewise, women often start using their married names some time after marriage, or revert to their maiden names after a divorce, without going through any formal procedures.

Generally, "a person is free to adopt and use any name that he or she sees fit, if it is not done for any fraudulent purpose and does not infringe on the rights of others." Yet it's not clear how far this goes, especially if the alleged name change to a generic-sounding name happens after an earlier denial of pseudonymity.

I've only rarely seen discussion of this, but there's now a court decision on the subject, Judge William Young's May 7 order in Smith v. Roe (D. Mass.):

An excerpt from the long opinion Thursday in People v. White, decided by California Court of Appeal Justice David Rubin, joined by Justices Terry O'Rourke and Martin Buchanan:

On January 9, 2021—three days after the riot at the U.S. capitol—defendant Jeremy Jonathan White and several fellow Antifa movement activists traveled from Los Angeles to San Diego to meet local Antifa activists to counterprotest a planned right-wing "Patriot March." Donning full tactical armor and armed with bear spray and a taser, White led Antifa marchers up and down the Pacific Beach boardwalk as many of the Antifa protesters violently confronted right-wing marchers. The scene devolved into a riot and police ultimately declared the Antifa protesters an unlawful assembly.

Over a year later, a San Diego grand jury issued a 29-count indictment alleging that 11 defendants conspired to riot on behalf of Antifa to disrupt the January 9, 2021 political demonstration…. All but two defendants entered plea bargains, and the case proceeded to a joint trial against only White and codefendant Brian Lightfoot. White was [convicted of] conspiracy to riot … [and] sentenced White to two years….

In early January 2021, a 17-year-old supporter of outgoing President Trump posted flyers online advertising a "Patriot March" near the Crystal Pier in Pacific Beach at 2:00 p.m. on January 9, 2021. Antifa activists planned a countermarch for the same day and location.

The evening before the scheduled event, White, Lightfoot, and others communicated through the encrypted "Signal" smartphone messaging app about plans to "squad up" and disrupt the "Patriot March." White, whose Signal username was "ACAB Man" and whose Instagram username was "@theantifasoldier," was one of three administrators for this messaging thread, which they named "SD Fash Bash." Signal was "really the only way [White] like[d] to talk about actions" because "it's … encrypted" and "keeps conversation[s] secure." There were no direct communications between White and his coconspirators in this thread.

6/1/1925: Pierce v. Society of Sisters is decided.

From the Complaint in Wilkins v. Versant Media Group. Inc. (M.D. Tenn.), filed Friday:

This defamation lawsuit is about MS Now (formerly, MSNBC) using sham "anonymous" sources to push knowingly or recklessly false allegations that Alexis Wilkins, through her relationship with FBI Director Kash Patel, abused FBI resources. Defendants are, of course, free to comment on the leadership of the FBI and its allocation of resources, whether positively or negatively. They are not, however, entitled to lie about it.

Defendants falsely asserted that Ms. Wilkins demanded, and Director Patel ordered, that federal agents assigned to her security detail—which did not even exist at the time—escort an intoxicated friend home after a "night of partying." They falsely portrayed Ms. Wilkins as being intoxicated even knowing that she does not drink. Defendants presumed they could get away with this fiction by citing to "anonymous sources," disingenuously claiming "nonpublic" and "inside" knowledge. This was hogwash and they knew it. Journalists cannot avoid accountability by hiding behind fabricated "anonymous" sources. This lawsuit seeks to bring accountability for Defendants' egregious lies….

On December 5, 2025, Defendant, MS Now, published an article, written by its employees, Defendants Carol Leonnig and Ken Dilanian, titled, "Kash Patel ordered FBI detail to give girlfriend's pal a lift home: sources" …. In the Article, Defendants wrote:

FBI Director Kash Patel has—on more than one occasion—ordered that the security detail protecting his girlfriend escort one of her allegedly inebriated friends home after a night of partying in Nashville, according to three people with knowledge of the incidents.

Patel's girlfriend, Alexis Wilkins, asked FBI agents on her security team at least two times, including once this spring, to drive her friend home, and agents objected to diverting from their assignment, said the sources, who were granted anonymity to discuss nonpublic matters. But Patel insisted they do as Wilkins requested and in one case called the leader of Wilkins' security detail and yelled at him to do so.

This is entirely false. Director Patel has never ordered any FBI agent or member of Ms. Wilkins' security detail to escort any of Ms. Wilkins' friends home—inebriated or otherwise—nor did Ms. Wilkins ask any of them to do so. Not only did these supposed demands/orders never take place, but the entire scenario is fabricated. No FBI agents have ever escorted any of Ms. Wilkins' friends home.

That's the title and subtitle of a Washington Post article today; here are a couple of excerpts:

The attack drone spots the Russian soldier in a field in eastern Ukraine and swoops in. Only when it's nearly upon him does he see it. The onboard camera, sending video back to the remote pilot in real time, captures his panic. He throws his hands above his head and begins to run. The video cuts out.

Then a second video, shot from a surveillance drone: The soldier's body lies in the field, motionless. The drone zooms in to show his apparently lifeless face….

[T]hese videos … were submitted to the Ukrainian government as entries in a competition among frontline drone pilots, with points and prizes for high scorers—a literal first-person shooter in the increasing video gamification of war…. Units earn points for each Russian soldier they incapacitate or kill and each weapon, vehicle or piece of military equipment they destroy. Points may be redeemed in an online government marketplace for more drones, with which to target more Russian forces.

It's an interesting story, and I have no reason to doubt its factual accuracy. But it struck me as oddly lacking in historical context. I'm no military historian, but let me lay out my thinking; I'd love to hear what more knowledgeable readers have to say about it.

Last week, I participated in a Federalist Society forum on "Emerging Applications of the Congressional Review Act," featuring Michael Buschbacher of Boyden Gray, PLLC and Professor Alan B. Morrison of the George Washington University Law School, moderated by Laura Stanley of Gibson, Dunn & Crutcher LLP.

The discussion focused on the use of the Congressional Review Act to rescind the Environmental Protection Agency's grant of waivers of preemption to California for its greenhouse gas vehicle emission standards. The Government Accountability Office did not think that the waivers qualified as rules under the CRA. Michael Bushcbacher disagreed, for reasons explained in this op-ed. Congress disagreed too, and used the CRA to rescind the waivers.

During the forum we discussed the decision to rescind the waivers, the legal and political implications of this decision, California's lawsuit challenging the rescission, and what this (and other recent actions) mean for the future use of the CRA as a means to constrain administrative agencies. Video below.

5/31/1860: Justice Peter Daniel's death.

I continue to remain confounded by the Eleventh Circuit's Judicial Council decision to make Judge Betsy's reprimand private. (Yes, I know her name, but Judge Betsy has stuck.)

As I noted in a post quickly written before sundown yesterday, the Council identified a clear conflict of interest, but left the public unaware of which judge possesses that conflict. How can litigants possibly determine if a judge should be disqualified if they do not know the identity of the judge? I would propose a per se rule: whenever the Council identifies a clear conflict of interest, the reprimand must be public.

How could it be that not a single member of the Eleventh Circuit Judicial council felt compelled to dissent? Indeed, the Eleventh Circuit does not even publish the names of the members of the Council on the memorandum, other than Chief Judge Pryor. I've been unable to find the current members of the Council anywhere online. I found another order from August 7, 2025 that lists the following names:

WILLIAM PRYOR, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges; ALTONAGA, PROCTOR, HOWARD, GARDNER, BEAVERSTOCK, MARKS, BAKER, and WINSOR, Chief District Judges.*

I understand this membership may change every year, so I'm not sure which members remain.

I would gladly point to several distinguished members of the Fifth Circuit who took a different path.

In May 2024, the Fifth Circuit Judicial Council issued a private order concerning a judge. (My post initially labeled the order a reprimand, but as noted in the update, that was incorrect.) The facts were serious:

A law enforcement agency filed a complaint against a United States district court judge. The complaint alleges that the subject judge revealed sensitive and confidential information regarding a law-enforcement public corruption investigation, which the judge learned in a sealed bench conference in a criminal case pending before him, to a family member. The complainant alleges that the information was eventually relayed to the target of the investigation, and that the disclosure allowed the target to attempt to obstruct the investigation and brought the investigation to an early end. The target of the investigation was convicted of obstruction of justice and other offenses.

But the "subject judge" was not outed because he was really, really sorry, and promised it would never happen again. (Sound familiar?)

In a letter to the Special Committee, the subject judge stated that he would never intentionally interfere with a law enforcement investigation and he understands the risks and consequences of disclosing confidential information about government investigations. He also committed to avoid such disclosures in the future. The Special Committee found the judge's representations to be sincere and that his commitment to avoid such disclosures in the future appropriately addresses their concerns raised by the complaint.

Nineteen members of the Judicial Council considered this case:

RICHMAN, Chief Judge, ELROD, STEWART, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, OLDHAM, WILSON, ZAINEY, JACKSON, FOOTE, MILLS, REEVES, KINKEADE, ROSENTHAL, GILSTRAP, and MOSES

But four members dissented, and would have disclosed the name of the "subject judge"

Pursuant to Rule 24(a)(2) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, it is ordered that the name of the subject judge not be disclosed. Circuit Judges Jennifer W. Elrod, Gregg J. Costa and James C. Ho and District Judge Carlton W. Reeves would publicly disclose the name of the Judge who is the subject of the complaint.

Good for Judges Elrod, Costa, Ho, and Reeves. And for those keeping score at home, these judges are on very different positions along the ideological spectrum, yet they all agree on this important ethical issue: people who misbehave should receive public scrutiny.

Other judges on the Council, who I know and respect, were silent. Why?

While I'm at it, let me raise another issue. It is unclear when the original complaint was filed. But this case stretched at least 2.5 years. A footnote lays out this timeline:

The judges named in the caption were members of the Judicial Council when this matter was considered and approved by the Council in November 2021, and they concurred in the decision. Judge Costa resigned from the Court effective August 31, 2022. The Judicial Council terms of Judges Willett, Ho, Duncan, Foote, and Rosenthal expired December 31, 2021.

It took nearly three years to settle this matter. In the interim, Judge Costa had resigned from the court, and other members were no longer participating on the Council. I favor a legislative reform to put a clock on settling these matters. The public needs to know about misconduct in a timely fashion.

Update: I made an error. The Council did not issue a reprimand of any sort, either public or private. Rather, the Council simply "conclude[d] the proceeding" without taking any further action. The four judges would have made the subject judge's identity public, even if there was no reprimand.

In a motion filed yesterday, the Trump Administration indicated their intent to appeal the US Court of International Trade's order requiring payment of refunds to all those businesses who paid illegal tariffs imposed by Trump using the the International Emergency Economic Powers Act of 1977 (IEEPA). The IEEPA tariffs were invalidated by the Supreme Court, in a case I helped bring and litigate (along with the Liberty Justice Center, and others).

When Judge Eaton of the Court of International Trade (CIT) issued his order in March, I thought the administration might appeal on the grounds that it is inconsistent with the Supreme Court's ill-advised strictures against universal injunctions in Trump v. CASA, Inc. (decided last year). But, in the intervening nearly three-month period, the administration did not appeal, and indeed even set up a tariff refund system that has begun issuing payments to businesses victimized by the illegal tariffs. Victor Schwartz, owner of V.O.S. Selections, the lead client in our case, is one of those who have already gotten a refund.

The administration now plans to argue that only those businesses who filed lawsuits are entitled to recovery. To my mind, this situation illustrates why we need universal injunctions in some types of cases. We have many thousands of businesses and other importers who were forced to pay over $166 billion in illegal tariffs. Requiring each of them to file their own lawsuits would be a huge waste of time and money, and major burden for smaller, less well-funded organizations. It would also significantly delay some of the payments, leaving taxpayers on the hook for interest payments when the refunds are finally issued.

In a previous post about the refund issue, I noted additional reasons why Judge Eaton was right to issue a universal injunction here, most notably that Trump v. CASA only applies to injunctions issued under the Judiciary Act of 1789 and its successors, not to the separate 1980 jurisdictional statute from which the Court of International Trade gets its authority.

As I have also noted in previous posts, even complete refunds for illegally collected tariffs cannot fully remedy the harm they cause. Among other things, they cannot compensate consumers who had to pay higher prices, or businesses who lost sales or suffered from diminished investment and disrupted relationships with suppliers. These factors argue against staying injunctions against the collection of illegal tariffs, as the courts mistakenly did in our case (but the CIT recently ruled the other way in the ongoing Section 122 tariff case).

The government's demonstrated unwillingness to issue complete refunds to all the victims is another reason not to stay injunctions against the Section 122 tariffs, or any other illegal tariffs the executive might try to impose.

In the meantime, it is unclear how long this appeal will take to be resolved, and whether tariff refunds will continue in the meantime. I hope the the Federal Circuit and the Supreme Court (should the case get there) rule against the administration, and refuse to stay Judge Eaton's ruling while the litigation continues.

UPDATE: Technical procedural issues aside, the administration has a moral and legal duty to refund all the money, and it should not be hard to see why. As I noted in a previous post:

[T]he Trump Administration can easily resolve the refund issue simply by giving up this legal fight and issuing refunds to all those forced to pay the illegal tariffs. That would not be hard to do. The government has a record of all the payments and who made them. Calculating interest also is not difficult. The government could just make electronic payments or send checks to all those entitled to them.

Ultimately, the government illegally seized billions of dollars and therefore must pay them back. If I unjustly and illegally take your property, I have a duty to give it back, and pay interest. The same principle applies when the federal government does it. You don't have to be a legal theorist or a tariff expert to grasp this simple point.

NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of the tariff litigation.

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