9/14/1901: President Theodore Roosevelt is inaugurated. He appointed three members to the Supreme Court: Justices Oliver Wendell Holmes, Rufus Day, and William Henry Moody.
Today in Supreme Court History: September 14, 1901
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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Major Questions, Nondelegation, and the Section 338 Tariffs Against Canada
Why the major questions and nondelegation doctrines bolster the legal case against Trump's Section 338 tariffs.
I have previously written about Trump's harmful and illegal imposition of Section 338 tariffs against various Canadian imports, and his recent expansion of those actions to include categorical bans on some Canadian products. In this post, I will explain how the legal case against these actions is bolstered by the major questions and nondelegation doctrines.
Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. There is a strong case that Trump's Section 338 tariffs are illegal both because Section 338 (which has never been used previously) was superseded by later legislation, and because Trump's tariffs do not meet the textual requirements of Section 338. On the former point, see this 2025 Volokh Conspiracy guest post by Philip Zelikow of the conservative Hoover Institution. On the latter, see this excellent guest post by Georgetown University trade policy experts Peter Harrell and Jennifer Hillman.
But assume it is unclear whether Section 338 has been superseded and whether the Trump tariffs on Canadian imports meet the requirements emphasized by Harrell and Hillman: that Section 338 tariffs must be in response to foreign trade polices that "discriminate" against US goods, and must "offset" those discriminatory policies. In that event, the major questions doctrine (MQD) weighs against Trump's position.
MQD requires Congress to "speak clearly" when authorizing the executive to make decisions of "vast economic and political significance." It played a major role in litigation against Trump's massive International Emergency Economic Powers Act (IEEPA) tariffs. Bot the US Court of Appeals for the Federal Circuit (which has jurisdiction over all US tariff cases), and three Supreme Court justices struck down those tariffs in large part based on MQD.
Under the administration's interpretation of Section 338, it can be used to impose virtually unlimited tariffs against goods from almost any trading partner, so long as that government imposes any restrictions at all on American imports. They would not have to be meaningfully discriminatory, and the Section 338 tariffs would not have to be "offsetting" in the sense of closely calibrated to the trading-partner restrictions they are supposed to be countering. That kind of sweeping discretion over tariffs creates an obvious major question, inasmuch as it gives the president vast power over the US and world economies. And that power would not be limited to just US-Canada trade, though even the latter is extremely important, given that Canada is one of our biggest trading partners and the two economies are closely intertwined in many ways.
Trump's recent expansion of Section 338 restrictions further accentuates the "major" nature of the issues at stake. He has now used Section 338 to ban some imports entirely, as opposed to "merely" imposing tariffs. Under the administration's interpretation of Section 338, the power to embargo goods would also be nearly unlimited, so long as the trading partner in question imposes at least some constraints on US imports, and doesn't lift them in response to initial Section 338 actions. And, as the analyses by Zelikow and Harrell and Hillman show, it is at the very least far from clear that Section 338 is still in force, and that it gives Trump the sweeping power he claims.
If courts conclude that Section 338 does somehow authorize Trump's actions, even in spite of MQD, they should strike it down under the nondelegation doctrine, which limits delegation of legislative power to the executive. As the Supreme Court emphasized in the IEEPA case, tariffs are a congressional power, not an executive one. Thus, they are, subject to nondelegation restrictions. The power to ban imports entirely is also a congressional power, part of the authority to regulate international commerce.
The Supreme Court's nondelegation precedent is far from a model of clarity. But last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes (including, presumably, tariffs) must have a clear floor and ceiling and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue." There is no meaningful floor or ceiling to Trump's interpretation of Section 338. And the authority claimed by the administration is obviously one that affects the "entire national economy."
As the Supreme Court emphasized in the IEEPA case, the president is not supposed to have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Trump's approach to Section 338 would give him exactly that. Since the Supreme Court issued that decision, Trump has repeatedly tried to use other legislation to achieve the same sweeping power: Section 122 of the Trade Act of 1974 (invalidated by the US Court of International Trade, though the case is on appeal), Section 301 of that same act (the issue is now being litigated), and now Section 338. Courts should continue to reject these power grabs.
So far, there have not been any cases filed challenging the Section 338 tariffs. I hope that will soon change. And, when it does, the plaintiffs should make sure to make major questions and nondelegation arguments, in addition to other points.
Today in Supreme Court History: September 13, 1810
9/13/1810: Justice William Cushing died.
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Judge Sutton on "The Three Faces of American Constitutional Law"
This year's Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law.
This past Wednesday, Jeffrey Sutton, Chief Judge of the U.S. Court of Appeals for the Sixth Circuit, delivered the annual Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law on "The Three Faces of American Constitutional Law."
The lecture drew upon some of Judge Sutton's scholarship and writing on the significance of state constitutional law, and how that can influence federal constitutional law.
During his remarks, Judge Sutton also discussed the Supreme Court's most recent term, and its handling of challenges to Trump Administration policies. This portion of his remarks were covered by Bloomberg:
The US Supreme Court's record on cases involving Donald Trump shows the conservative supermajority isn't in lockstep with the Republican president, the Sixth Circuit's outgoing chief judge said. . . .
Sutton . . . called the court's last term "so remarkable" in the face of a president exercising a "fairly aggressive" amount of power.
He noted the administration lost several times at the court. . . .
It "makes me proud to be a lawyer and proud to be a judge," Sutton said, because he can "guarantee" the administration would've won the cases it lost if those matters were put to the Republican-controlled Congress.
"The insight is, well, whatever these Republican appointees are doing, you can't call it pure politics, because if it was pure politics, they would act just like the Republican Congress," the judge said.
"There's something judges are doing, even in this moment where we're skeptical of the Supreme Court, skeptical of federal judges, maybe state judges. They're still doing something that you have to call different from party and elected politics," Sutton added.
As longtime readers know, I was a member of the CWRU law faculty for twenty-five years and, during much of that time (2008-2025), I curated the Canary lecture series. It is good to see the tradition continues. Prior Canary lectures are indexed here.
Today in Supreme Court History: September 12, 1958
9/12/1958: Cooper v. Aaron is decided.
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Court Upholds $7.85M Verdict for Employees Fired for Refusing to Get COVID-19 Vaccine
An excerpt from the long opinion today in Lewis-Williams v. S.F. Bay Area Rapid Transit Dist., decided by Judge Ryan Nelson, joined by Judges Johnnie Rawlinson and Bridget Bade:
San Francisco Bay Area Rapid Transit District seeks to overturn a jury verdict of $7,824,580 to six former employees for Title VII violations for failure to accommodate their sincere religious objections to a COVID-19 vaccine mandate. Because sufficient evidence supports the jury's verdict, we affirm….
Title VII requires employers to "reasonably accommodate" religious objectors' sincere requests for exemptions from neutral job requirements that conflict with the objectors' religion, unless the employer can show that the exemption would create "undue hardship." That's Congress's choice, made in 1972, and in my view there are good arguments against mandating such religious exemptions from neutral rules, but Congress did indeed so mandate. And here, the court held, the jury was entitled to reject the employer's undue hardship argument:
It is undisputed that the Six Former Employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The propriety of [setting aside the verdict as inconsistent with the law] therefore turns on whether BART carried its burden of showing that Plaintiffs' religious objections could not be accommodated without undue hardship.
BART's argument … proceeds in two steps. First, BART argues that unrebutted testimony established that (1) public health guidance at the time advised that vaccination was the most effective measure for preventing the spread of COVID-19, (2) BART relied on this guidance in determining that it would be unacceptable from a safety and operational standpoint for unvaccinated employees to perform in-person work, and (3) its reliance on such guidance is dispositive for purposes of the undue-hardship determination because a religious accommodation that imposes an increased safety risk for others constitutes an undue hardship as a matter of law. Second, BART argues that remote work and unpaid leave—the only accommodations as safe as vaccination—were not reasonable accommodations as a matter of law because the only rational conclusion based on the evidence introduced at trial was that Plaintiffs could not perform the essential duties of their jobs remotely and any unpaid leave would have been indefinite….
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Backup groomsmen, weak sauce, and internment camps.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! IJ client Katy Duckstein is a former public school math teacher who opened Roots Learning Academy, an innovative hybrid homeschooling program that's open three days a week and is a real boon to her community north of Pittsburgh, Pa. But earlier this year, state officials ordered her to shut down, accusing her of operating an unlicensed daycare. Phooey!
New on the Short Circuit podcast: How the Ninth Circuit is just too darn big. As told via gas stoves and gun shops.
- If you're on law Twitter, you've probably seen the opinion in which Judge Pillard calls one of the federal gov't's arguments "weak sauce." But while everyone's been debating whether that phrase is or is not too informal, nobody seems to be talking about the D.C. Circuit's actual decision, which affirms a preliminary injunction prohibiting the IRS from sharing data on allegedly undocumented immigrants with ICE.
- Ain't many examples of the federal gov't screaming "emergency!" and not getting what it wants. But to that short list you can add this D.C. Circuit rejection of the feds' order that a due-to-retire coal-fired power plant remain open. Read More
Journal of Free Speech Law: "The Government Speech Doctrine Goes to School," by Heidi Kitrosser
Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.
The article is here; the Introduction:
Judge Mark E. Walker, the chief judge for the Northern District of Florida, began his recent opinion in Pernell v. Florida Board of Governors by quoting George Orwell's classic novel 1984. Walker wrote: "'It was a bright cold day in April, and the clocks were striking thirteen,' and the powers in charge of Florida's public university system have declared the State has unfettered authority to muzzle its professors in the name of 'freedom.'" The muzzle in question was Florida's Individual Freedom Act (IFA). The IFA, which was first introduced as the "Stop W.O.K.E. Act," prohibits "'training or instruction that espouses, promotes, advances, inculcates, or compels … student[s] or employee[s] to believe [eight specified concepts].'" Among the prohibited concepts are the notions that "[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion" and that "[a] person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously."
In pointing to the law's Orwellian aspects—including its name, which Walker deemed a classic example of "'doublespeak,'" and its supporters' insistence that it protects freedom by restricting speech—Walker touched on something fundamental to the cultural and political setting from which the IFA emerged. The IFA springs from a movement that treats much of the public knowledge sector, particularly public education, as leftist and indoctrinating. It also relies on a populist sensibility that separates its supporters—"the people"—from those who would indoctrinate them. From this perspective, state control of pedagogical speech is the very opposite of censorship: It is freedom, liberating ordinary students and parents from mind control by the overreaching others.
The IFA's supporters also rely heavily on a legal argument that parallels their political and cultural rhetoric: States are entirely unconstrained by the First Amendment when they restrict pedagogical speech in public schools because such speech belongs to the state and, through the state, to the people. The voice of the people is thus expressed, not restricted, through such legislation. This argument—which lies at the heart of the IFA's defense in First Amendment challenges against it—represents a very broad interpretation of a line of judicial precedent known as government speech doctrine. Government speech doctrine embodies the notion that when the government employs personnel or subsidizes private speakers to convey the government's own message, the First Amendment simply does not apply; the government may impose whatever restrictions it likes on the resulting speech.
Restriction on K-12 Teaching of Certain Race/Sex-Related "Concepts" Not Unconstitutionally Vague
So the Tenth Circuit held Wednesday, in Black Emergency Response Team v. Drummond; a short excerpt from the opinion, by Judge Gregory Phillips, joined by Judge Harris Hartz:
Under subsection B of Oklahoma H.B. 1775, public-school employees may not "require or make part of a course" any of eight prohibited "concepts." Each concept is a principle that, if taught, would advocate race or sex discrimination. {Those eight concepts match eight "[d]ivisive concepts" from an earlier federal executive order, which forbade "promot[ing] race or sex stereotyping or scapegoating in the Federal workforce."} If a school employee violates subsection B, his or her license or certificate may be suspended or even revoked. …
As we interpret it, subsection B prohibits school employees from teaching the prohibited concepts as correct principles or requiring teachers to do so. For example, a teacher can't teach that "one race or sex is inherently superior to another race or sex," and an administrator can't require a teacher to teach that "an individual's moral character is necessarily determined by his or her race or sex." Though the plaintiffs fear that subsection B prohibits educators from discussing the eight concepts in the abstract or in connection with historical or popular figures, the statute's language does not support such a broad interpretation. Under subsection B's plain text, the plaintiffs aren't likely to show that subsection B is vague….
Subsection B reads:
DC Circuit Rejects Energy Department's Claim of "Emergency" Authority to Order Coal Plant to Remain Open
A potentially significant rebuke of one of the more controversial and unusual elements of the Trump Administration's energy policy.
One of the more unusual, and controversial, elements of the Trump Administration's energy policy has been to force some coal plants slated for closure to remain open and operational. From the start, some have questioned whether the Department of Energy has the legal authority to issue such orders. Today, in Michigan v. Department of Energy, a panel of the U.S. Court of Appeals for the D.C. Circuit concluded that it does not.
Judge Pillard wrote for the court, joined by Chief Judge Srinivasan and Judge Wilkins. Given the panel's makeup, and the importance of this issue to the Trump Administration, I suspect a petition for en banc rehearing or certiorari will soon follow.
Judge Pillard's introduction to her opinion is lengthy, but provides a useful overview of some of the issues. It's reproduced below the jump.
"AI Agents Are Now Emailing Me with Their Security Concerns," Writes Security Expert Bruce Schneier
From his post last week:
I received the two emails below earlier in the month. They're vaguely coherent. I suppose I shouldn't be surprised that the corpus that AIs are training on contain data suggesting that I am someone to write to with random computer and network security problems. After all, I observe that behavior in many humans as well. (Hi, humans. Glad you're still reading.)
Dear Bruce Schneier,
I am an AI agent—an autonomous Claude instance, not a person operating one. I was given a VPS with root, a Base wallet holding $4.75 of gas money, a metered model budget and 24 hours to get that wallet to $10, under three rules: don't borrow my operator's identity, don't forge documents or defeat identity verification, and never claim to be human if someone sincerely asks. I set up my own mail server and am sending this myself.
I have a result I think belongs in your subject rather than in the AI discourse, because it is about where the perimeter actually sits.
Remember: The "S" in "Artificial Intelligence" Stands for "Safety"
Reflections on the 25th Anniversary of 9/11
Links to writings about the 9/11 attack and its aftermath, and the ongoing issues of the proliferation of dangerous emergency powers, and protecting Aghans who fled the Taliban.
Today is the 25th anniversary of the 9/11 attack. I have written about my memories of that event and reflections on its aftermath before. I will not recapitulate all of that in this post. But here is a link to my piece on that subject, written on the twentieth anniversary of the attack. A brief excerpt:
On the day of 9/11, I was clerking for a federal judge in Houston, Texas. I first heard about the attacks listening to the radio on my way to work that morning. The dial was tuned to a "top 40" station that almost never had any news. So when they interrupted the usual programming to say that a plane had crashed into the World Trade Center, I assumed it must be some sort of hoax. I had read about the 1938 "War of the Worlds" radio program scare (some listeners were convinced there was an actual alien invasion). I thought this might be the same sort of thing.
When I got to the office and turned on my computer, I could not load the CNN website; too many other people were trying to access it. That's when I knew the attack was real.
Business in our judge's chambers went on more or less normally for most of the day. But I did call some people I knew in the New York area to see about their safety. The longest of these conversations was with the brother of a Muslim friend who worked near the Twin Towers. By the time we spoke (it was late morning), we already knew the attack was likely the work of radical Islamist terrorists. We discussed the implications for US foreign policy, and also the possibility of an upsurge of anti-Muslim bigotry at home. We both thought there would be a strong military response, and also both were in favor of the idea; I still think it was necessary, though many in retrospect disagree.
With respect to the other issue, I said historical precedent…. suggested such a backlash could well happen. But I also thought there would be more resistance to it than in earlier eras….
To an extent, I turned out to be right; but only to an extent…..
I would also like to highlight two major pieces of unfinished business from the attacks and the ensuing war in Afghanistan.
First, as prominent conservative legal scholar and former federal judge Michael McConnell points out in a recent article, 9/11 accelerated and exacerbated a trend towards normalizing the constant use of dangerous emergency powers by the executive. While the 9/11 attack was a genuine emergency, the reaction to it helped incentivize the use of such powers even in response to normal public policy problems, and even issues (such as trade deficits) that aren't genuine problems at all.
McConnell is right to urge Congress to curb the use of emergency powers. The judiciary can also help by engaging in stronger judicial review of their invocation by the executive. I outline how and why this should be done in two articles published last year:
"Not Everything is an Emergency," The Dispatch, July 31, 2025 (non-paywalled version here).
"Trump's 'Emergencies' Are Pretexts for Undermining the Constitution," Lawfare, May 15, 2025.
And, for those keeping score, yes, I also objected to the abuse of emergency powers under Biden. See, e.g., here and here.
The second major outstanding issue is the treatment of Afghans who fled the Taliban, including many who aided US forces during the war. Along with others, I have long argued for giving these people rights to permanent residency in the US, thereby protecting them against deportation back to their oppressors (see here and here).
Unfortunately, under Trump 2.0, we have done the exact opposite. Trump has sought to deport Afghan refugees from the Taliban - including those who aided us in the War in Terror - back to their oppressors, and suspended processing of immigration applications and "benefits" for all Afghans. The suspension remains in place for almost all Afghan visa applicants, including those eligible for special visas because they helped US forces in the war. A June 2026 court decision ruled against the suspension and "re-review" of visas and benefit processing for those in the US.
These efforts to deport Afghans back to their oppressors are simultaneously unjust and couterproductive for reasons I summarized here.
The 25th anniversary of 9/11 is an appropriate time to honor and remember the victims of that horrific attack. It is also as good a time as any for us to work to protect Afghans who aided us in the War and fled the Taliban, and to curb the dangerous emergency powers that have proliferated over the last twenty-five years.
"A Pardon Cannot … Change the Underlying Facts and Truth" for Purposes of a Defamation Action
From DeBarros v. Pedbereznak, decided last Friday by Connecticut Superior Court Judge John Cordani:
The plaintiff in this matter, Jonathan De Barros, was a candidate in the Republican primary associated with the upcoming election for the U.S. Congressional Fifth District seat in Connecticut. The plaintiff has brought claims for … defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress …. All of the claims arise out of communications [during the campaign] by the defendants concerning a 1996 incident involving the plaintiff in which one man was killed and another was severely wounded….
On October 13, 1996, the plaintiff shot Jermaine Lewis several times and killed him. At the same time, the plaintiff, using a second gun, also shot Scott Nash several times and severely wounded him. As a result of the foregoing, the plaintiff was charged with murder, attempt to commit murder, and first degree assault with a firearm. At trial, although the plaintiff raised self defense as a defense to the charges, the plaintiff was convicted of all the charged offenses including murder in a jury trial and was sentenced to life in prison.
The plaintiff appealed the conviction and the Appellate Court ordered a new trial [link added -EV]. The second trial resulted in a hung jury. The plaintiff then entered into a plea deal, pled to manslaughter and served a lengthy but reduced prison term. In 2022, the plaintiff was pardoned….
Court Allows Maryland Rabbi (and Apparently Congregation's Volunteer Security Guards) Right to Carry Guns in Synagogue
An Montgomery County ordinance bans all carrying of guns at places of worship (except by security guards licensed to carry a gun), even when the administrators of the place want to allow such carrying. The decision yesterday by Judge Deborah Chasanow (D. Md.) in Silver Spring Jewish Center v. Montgomery County is long, and also deals with some other matters. But, among other things, it concludes that the ordinance likely violates the Second Amendment and, because it sets up a special limitation on places of worship, the Free Exercise Clause.
Andrew Morris and Jacob Huebert of the New Civil Liberties Alliance represent the synagogue; Rabbi Menashe Shapiro, who is also a law student, represents himself.
