The proposal would add a new Business and Professions Code section that would say, in relevant part (emphasis added):
It is the duty of an attorney using generative artificial intelligence to practice law to ensure … [that r]easonable steps are taken to do … [r]emove any biased, offensive, or harmful content in any generative artificial intelligence material used, including any material prepared on their behalf by others.
But legitimate advocacy, whether in court or "provided to the public," may well include content that some view as "biased, offensive, or harmful" (e.g., emotionally distressing, advocating for bad ideas or bad people, etc.). An attorney may well reasonably think that it's in his client's interest to engage in such advocacy.
As I understand it, there are no legal ethics rules forbidding such advocacy—indeed, they may mandate it, if that's what it takes to serve the client's interest. Indeed, even the proposed Rule 8.4(g), which would have forbidden certain "derogatory or demeaning" speech "based upon race, sex, religion, …," and which some courts have rejected on First Amendment grounds, at least expressly excluded "advice or advocacy consistent with [the] Rules [or Professional Conduct." This proposed statute doesn't have such an exclusion (though even if it did have such an exclusion, I think it would still be improper).
I'm not sure how the law can then forbid the lawyer from using AI to express those views. Indeed, I think such a requirement would be an unconstitutional viewpoint-based speech restriction, especially since "practic[ing] law" often involves not just creating court filings but also creating public statements on a client's behalf. And even when it comes to court filings, where various restrictions (perhaps including some viewpoint-based ones) may be permissible, it strikes me that this restriction would be highly unwise.
Likewise, under the bill a lawyer would have the duty to ensure that
I have long been a subscriber to the New York Times. I read the online version daily, and closely follow its reporting about the Supreme Court. Traditionally, the Times had a single Supreme Court reporter: Anthony Lewis, Stuart Taylor, Linda Greenhouse, and most recently Adam Liptak. These reporters would cover all facets of the Supreme Court. They would preview high-profile cases, write about oral argument, analyze decisions, and offer updates whenever the Justices did something noteworthy. But in recent years, I've noticed a shift in how the media covers the Supreme Court. New reporters were hired who focused not on the work of the Court, but on the Justices themselves. There were many stories about Justice Alito's flags and Justice Thomas's travels. And Jodi Kantor published inside information about the Court's deliberations.
The TimesInsider interviews the SCOTUS quartet--Jodi Kantor, Adam Liptak, Ann Marimow, and Abbie VanSickle--to explain why the Times has expanded its coverage.
Adam Liptak, who practiced law for 14 years, has been the dominant and authoritative voice on the beat since he began covering the court in 2008. He has just taken on a new role, chief legal affairs correspondent, and will soon start writing a weekly newsletter, The Docket, about the most pressing legal questions of the day.
Nearly four years ago, Jodi Kantor, an investigative reporter with a track record of telling difficult stories, began taking readers inside the institution and delivering telling portraits of how the justices exercise their power, often working with Adam. In 2023, The Times added an investigative reporter and lawyer, Abbie VanSickle, to the team. Last summer Ann E. Marimow, who previously covered the court at The Washington Post, took over Adam's role writing about major cases.
The first, and most important note, is that Adam Liptak is stepping down from his regular coverage of the Court. His latest Sidebar column closes with this note:
The first installment of the Sidebar column appeared 19 years ago, in January 2007. It was about housing discrimination. Since then, I've written hundreds more. This one is the last.
But I have more to say, and I'll be saying it in The Docket, a new weekly newsletter on the law. It will retain a lot of this column's DNA, but, if I do it right, it will be more ambitious, varied and informal. I hope you'll join me there.
I promptly signed up for the newsletter, but will miss Adam's regular coverage. Even where I disagree with Liptaks coverage from time-to-time (including about myself), I still found him to be a fair, careful, and insightful journalist. Adam leaves large shoes to fill.
Second, Jodi Kantor state with some clarity the effect, if not purpose of the expanded coverage. She was asked if "greater media scrutiny affected on the court, the justices or their performance." Kantor replied, "I just want them to know we're watching them." I firmly believe that Justices respond to media scrutiny. I think this scrutiny works, so long as it is applied to both sides. I offered this remark about Kantor's reporting in November:
In the past, I've been critical that she has focused only on the Court's conservatives. To her credit, Kantor has done a deep dive on the Court's three progressives.
Indeed, my post was cited in the interview.
Americans across the ideological spectrum want to know more about the court. I noticed that a prominent conservative legal analyst wrote online how much he learned from your piece on the liberal justices, for instance.
KANTOR: That story does get to the heart of this work — who are the nine human beings who inhabit these roles, and how do they approach their work? How do lifetime appointments and the extreme way people tend to treat the justices — obsequiousness, attack — affect them? What is this institution — the holy of holies of American law — actually like inside, and how does power flow there? How partisan are the justices, and how do they interact with one another? Those are the kinds of questions I'm interested in discussing. (And if anyone with knowledge wants to help, you can reach me securely through nytimes.com/tips.)
This was the second time in 24 hours that the Times felt compelled to refer to me as a conservative. More on that later.
Speaking of balance, I'd like to know how Justice Jackson reacted to all of the anti-ICE statements during the Grammy's. Remember how closely Justice Alito was scrutinized after the 2010 State of the Union address? An MSNBC reporter talked to Judge Emil Bove after the President's rally in the Poconos. Certainly someone checked in with KBJ on this point, right?
Third, Kantor refused to say even a word about her sourcing:
How do you get people inside an institution as heavily cloaked as the court to share important but confidential information?
KANTOR: We can't talk about our sources, full stop. Even an innocuous comment from us could be mistaken for a clue, and we have pledged to protect their privacy.
There is some irony that someone leaked information about the Chief Justice's NDA in violation of the NDA. I'll write about that story later.
Still, Kantor acknowledges that much of her reporting can be found in the actual opinions, a point I've made many times before:
But the behind-the-scenes stories we've been able to tell often have public hints and markers. I recently wrote about the split in strategy among the liberal justices, based on conversations with people who know and understand them. But the differences in approach between Justice Elena Kagan and Justice Ketanji Brown Jackson, and the strains between Justice Jackson and Justice Amy Coney Barrett, are right in the text of opinions. This world is very decorous; we're not talking about the screamathons we see in other areas of public life. That means that even a word or two can pack a punch.
Finally, Adam offers an unfortunately accurate observation:
News coverage has changed, too. Our first takes on arguments and decisions are published much faster than when I started covering the court in 2008. The introduction of live audio in 2020 was a mixed blessing. I used to attend a majority of the arguments in person. Since the court allows only pen and paper in the courtroom — no electronics — I paid close attention. These days I often listen on my laptop and don't always succeed in avoiding distractions.
I think one of the greatest downsides of live-streaming is that people spend less time attending oral arguments, and reading the transcripts. As a rule, I will only write about a case after I've read the transcript--even if I tune into the livestream. Reporters do not have that luxury.
I look forward to reading the reporters from the Times, and other outlets. I just want them to know I'm watching them.
Last week, I wrote about Yoram Hazony's speech at the International Conference on Anti-Semitism. Hazony argued that critics simply have not made the case against Tucker Carlson. Hazony made a very unusual reference to the lack of a fifteen-minute video to make that case. I quote him in full to ensure that readers get the full context:
A third possibility is that Jews and Zionist Christians have plenty of connections in the Republican party, but that the case against Tucker over the last six months just wasn't presented in a way that was professional, serious, and competent enough to be persuasive.
Sure, many of you think that Tucker is a leading promoter of anti-Semitism, and that the Trump movement should just ditch him.
But that's obviously not what President Trump thinks about Tucker, who did extraordinary work building up the Trump movement over seven years as a host on Fox News. On top of that, Tucker is a very smart, passionate, and very likeable man when you meet him in person. I had lunch with him once, years ago, and I thought he was great. I invited him to NatCon 1 and he gave one of the best speeches we have ever hosted.
And Tucker has been saying—as clear as the day—that he is not an anti-Semite.
Now, if you think otherwise, you are going to have to convince people. You will have to make your case, in a persuasive way, to people who don't spend a lot of time watching podcasts.
Have Tucker's critics done that? Well, if they have, where is the 15-minute explainer video, that I can show my friends on the political right, which proves that this very serious accusation against Tucker is true? Where is the carefully assembled research, with links and dates and timestamps, that could convince an impartial public figure who is open to being convinced?
The answer is: There is no such 15-minute explainer video. There is no such serious research. They don't exist because, for some reason, there are no Jews or Zionist Christians, who think it's their job to produce such things. Or if there are people who think it's their job, they haven't circulated anything of the sort—to me or to anyone else in Washington who's in a position to do anything with it.
This is an extremely high level of incompetence by the entire anti-Semitism-industrial complex, some of whose representatives are sitting right here in this room. Maybe some of you think you were persuasively "fighting anti-Semitism" over the last six months. But the unfortunate truth is that you weren't.
When I first read this, I wondered whether a fifteen minute video is some sort of necessary condition. Is this the standard length of opposition research needed to take someone down? I didn't give this passage much attention, as there were so many other problematic aspects of the speech.
But now, the story has developed.
The day after Hazony shared his speech, Orit Arfa published an essay at Tablet, titled "Yoram Hazony's 15 Minutes." Until recently, Orit worked for Hazony. I interacted with her when I spoke at NatCon 5 in September.
The story is almost too strange to believe: there is a 15-minute video.
The truth, as Yoram well knows, is that there is such a video—and the reason he knows it is because Yoram himself produced it. Fellow employees and I worked hours to produce an explainer with video excerpts of Tucker's seven slanders against Jews that Yoram enumerated in his speech. The final cut? Fourteen minutes and 57 seconds.
But Yoram would not make this video public. He kept it unlisted in an obscure account with the stated intention of sharing it with select people in Washington. I am flabbergasted that Yoram would say that no such video exists, because he produced one. He just didn't have the courage to put his name or his organization's name on it or to make it public. It saddens me that he would diminish the work of his dedicated employees by erasing our efforts.
Will Chamberain, who works for Hazony, offered a different take: Hazony knew a fifteen minute video existed, but he concluded that it didn't make the case:
Should he have clarified by saying "there is one such video that I tasked a subordinate with making, but I haven't published it because her work product was poor and the video was unpersuasive?"
This is all a massive stretch.
Arfa responded that Hazony had praised the video, and showed it to people:
Will, it was a group effort. He gave editorial guidance at every step and praised our teamwork and the final product. Watch it.
Someone shared with me this brilliant insight:
"When I read his speech, I was jarred by the focus on a '15-minute video.' Such a specific reference. There have been countless articles and op-eds and podcasts and media appearances and social media posts pointing out Tucker's rancid antisemitism. Why did it have to be 'a 15-minute video'? But your piece explained it. It was a tell. BECAUSE he knew there was one because you all produced it. It was what remains of his conscience goading him to tell on himself."
This is all so strange. Frankly, I don't know what to believe. Hazony didn't have to say anything about a 15-minute video, but by doing so, he opened himself up to this predictable criticism.
Hazony is clearly focused on expanding the tent. But he is the center pole under the big top. When he engages in such inexplicable behavior, the entire tent begins to collapse. The leader of a moment needs to avoid unforced errors, yet Hazony continues to make them. Indeed, Hazony's compatriot Kevin Roberts is in similar spot. As Roberts continues to fall, the edifice that is the Heritage Foundation collapses, and becomes unrecognizable.
I've learned that the next NatCon conference will be in Jerusalem in June 2026. That should go over well.
As of this past Saturday, Associate Justice Samuel Alito has been on the Supreme Court for twenty years. He joined the Court on January 31, 2006.
On October 31, 2005, President George W. Bush nominated then-Judge Samuel Alito to replace Justice Sandra Day O'Connor after the withdrawal of White House Counsel Harriet Miers' nomination. The next day, I had this op-ed in the Wall Street Journal profiling the nominee.
Judge Alito is a supremely qualified nominee who should (though he may not) win a quick and easy confirmation. Some Senate Democrats will find reasons to oppose him, but he once held their support. He was confirmed unanimously by a Democratic Senate in 1990 only two months after he was first nominated by George H.W. Bush.
There being no question about Judge Alito's accomplishments and credentials, the debate over this nomination will focus squarely on his jurisprudence. Already at least one Democratic aide reportedly called Judge Alito a "right-wing wacko." Such epithets grossly distort his record. He is not a dogmatic conservative; his record shows a man more interested in getting the law right and faithfully applying applicable precedents than scoring rhetorical points or advancing an ideological agenda. As he commented in an interview earlier this year, "Judges should be judges. They shouldn't be legislators, they shouldn't be administrators."
Judge Alito is most often compared to Antonin Scalia. Years ago one journalist even dubbed him "Scalito," and the name stuck. While the two share an ethnic heritage and a constitutionalist judicial philosophy, it would be easy to overstate the comparison. Judge Alito's opinions are rarely adorned with zingers or verbal barbs at his colleagues. What he may lack in rhetorical flair, however, he more than makes up for with analytical rigor. Whereas Justice Scalia's caustic wit and penchant for tweaking his colleagues (particularly Justice O'Connor) might have cost him in building court majorities, Judge Alito's subtle charm and cooler approach could make him a powerful intellectual force on the court.
I think it is fair to say the Justice Alito has been a more polarizing figure on the Court than I anticipated. Although he initially voted in virtual lockstep with Chief Justice Roberts, their approaches to the law began to diverge after several years on the Court.
After his confirmation hearing, I had a second WSJ op-ed piece discussing the partisan attacks on his nomination and the obsession with results-oriented evaluation of judicial decisions.
Samuel Alito has delivered an impressive performance under interrogation, revealing a humility -- and a command of legal matters -- well beyond that of his inquisitors. It was clear that many of those questioning him had little interest in the substance of his answers, particularly since he would not tell senators how he would resolve contentious issues that may come before the court. In response, Sen. Joseph Biden suggested in frustration that the Senate scrap confirmation hearings and simply debate the nominee's decisions as if they were considering legislation. . . .
Viewing judges as life-tenured politicians who get to impose their own policy preferences furthers the downward spiral of judicial politicization. To be sure, judges themselves are not blameless. The Supreme Court's willingness to inject itself into controversies traditionally resolved by the political branches of government only encourages interest groups to devote resources to shaping the federal bench.
Reversing the trend will be difficult. In today's political climate, to say that the judiciary should not resolve an issue is itself viewed as taking a side. Ironically, the same senators who worry that Judge Alito shows insufficient respect for the political branches are aghast that he might leave some thorny issues for the elected branches to sort out. In Thursday morning's questioning, Sen. Russ Feingold could scarcely believe that some aspects of constitutional separation of powers cannot be resolved by the courts.
A majority of Senate Democrats would seek to filibuster Justice Alito, voting against cloture on the nomination. He was confirmed nonetheless, albeit not by a filibuster-proof margin
Twenty years later, the confirmation process has only gotten worse. Confirmation hearings are an even more embarrassing spectacle and it is rare that Senators support nominees from across the aisle.
Justice Alito joined the Court to replace Associate Justice Sandra Day O'Connor, then the "median" justice, but he would not find his place in the middle of the Court. Instead, Justice Alito is often on the right flank, and on some issues may even be the most conservative justice on the Court. In some respects, he is the model of President Obama's "empathetic judge," albeit one who shows empathy for quite different groups and constituencies than Obama had in mind. I also expect him to remain on the Court for several more years to come.
Although a federal judge declined to issue a preliminary injunction requested by Minnesota and the Twin Cities, the plaintiffs should still prevail on their claims that the federal government’s actions there are unconstitutional.
This article is cross-posted (with permission) from the Brennan Center State Court Report website, where it was originally published; it builds in part on my earlier article about this case, published in Lawfare. Below is the new Brennan Center article:
Federal district court Judge Katherine Menendez issued a ruling Saturday denying a motion for a preliminary injunction blocking the deployment of thousands of ICE and other federal agents to the Twin Cities.
Minnesota and the cities of Minneapolis and St. Paul filed an important lawsuit on January 12 arguing that Operation Metro Surge, as the Trump administration refers to the mass federal deployment, violates the 10th Amendment. They argue that the administration is using the deployment to try to coerce them into giving up their "sanctuary" laws, which restrict state and local assistance to federal immigration enforcement. They also say the administration's actions have disrupted state and local government functions, including the state constitutional guarantee to education and the ability of state and local law enforcement to address crime and protect Minnesotans' safety — which is "one of the most basic rights reserved to the States and their municipalities" in our federalist system.
Preliminary rulings like the one that came down this weekend often presage the court's decision on the merits. But, unusually, the judge emphasized that her decision doesn't necessarily foreshadow a final ruling for the federal government, and that it is instead based on her uncertainty about some key issues. The ultimate outcome of the case remains unclear, especially since any decision reached by the district court will almost certainly be appealed. But the suit deserves to prevail; a contrary decision would set a dangerous precedent.
What is the 10th Amendment?
The 10th Amendment states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In Federalist 28, Alexander Hamilton assured readers that: "It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority." He emphasized that they can use their control of "the organs of the civil power" to "adopt a regular plan of opposition." Minnesota's resistance to oppressive — and, likely, illegal — federal policies is an example of such "opposition," and the 10th Amendment protects the state and its local governments against federal usurpation of their authority over their own employees and resources.
A series of Supreme Court decisions primarily supported by conservative justices, such as New York v. United States (1992), Printz v. United States (1997), and Murphy v. NCAA (2018), hold that the federal government cannot "commandeer" state and local officials to do the federal government's bidding or to help enforce federal laws. And in multiple decisions during the first Trump administration and continuing in the second, numerous lower federal courts ruled that the president could not order states to aid in immigration enforcement actions and could not withhold federal funds from sanctuary jurisdictions where doing so would be coercive or where Congress had not authorized immigration-related grants.
Control over state and local government personnel is one of the powers reserved to the states by the 10th Amendment and is a central element of state autonomy and sovereignty. If the federal government could coerce states into giving up that control, it could essentially neuter and render them almost totally subservient to the federal government.
Evidence described in the plaintiffs' filings and Menendez's decision extensively documents what appears to be the federal government's main motive for launching Operation Metro Surge: to pressure Minnesota's state and local governments into giving up their sanctuary policies. I highlighted additional evidence in a recent Lawfare article about this case, such as statements by Trump "border czar" Tom Homan last week that the administration would scale back the crackdown if state and local officials cooperated and provided greater access to jails.
An "Unprecedented" Case
As Menendez noted in her opinion, the current case isn't precisely analogous to previous court decisions on commandeering and federal coercion of states, and raises "unprecedented" issues. The earlier precedents largely dealt with either congressional laws directly imposing coercion or the withholding of federal funds from state and local governments. It is also true that many federal policies and law enforcement efforts can indirectly burden states in various ways and that the federal government often has the option of increasing enforcement efforts in states that refuse to help. Legal scholar Jonathan Adler emphasizes these points in his defense of the government's position in the case.
But, in this case, the "enforcement" effort has been undertaken for the specific, openly avowed purpose of punishing and coercing the states, not merely increasing enforcement to make up for its limitations on cooperation. In addition, the fact that many of the federal actions — including violations of First Amendment rights, illegal detentions, warrantless searches, and unjustified killing of protestors — are independently illegal also makes them coercive, in much the same way that a Mafia boss threatening to break your legs is coercive while threatening something he has a legal right to do is not. This illegality means private parties can bring lawsuits on other grounds, as some have. But it also bolsters a Tenth Amendment suit by states and localities. And the latter can be more effective for reasons I noted in my earlier Lawfare article.
Furthermore, as the Minnesota lawsuit documents, many of the federal actions here directly disrupt state and local government functions, such as public schools, emergency services, and local police. For example, federal raids and the threat of additional ones have forced many schools to close, preventing state and local officials from meeting their state constitutional obligations to provide an education, the state and cities say. That creates direct coercion of the states for purposes of commandeering, and is different from cases where federal enforcement efforts merely have an incidental impact on the states.
Even Otherwise Lawful Actions Can Be Coercive
Even otherwise legal federal actions become coercive if done on a large enough scale for the purpose of pressuring states. For example, Spending Clause coercion cases such as NFIB v. Sebelius (2012) — the famous Obamacare case — hold that conditioning a large enough amount of federal grants on state cooperation with a federal program qualifies as coercion, even though Congress generally has broad discretion to impose conditions on federal grants to states and local governments. Sending 3,000 armed federal officers to harass the public and disrupt state and local government functions is at least comparably coercive to threatening to withhold a large amount of grant money.
Chief Justice John Roberts famously described the grant condition struck down in NFIB as a metaphorical "gun to the head." Several lower court cases addressing attempted denial of federal funds to sanctuary cities reached similar conclusions. Operation Metro Surge is pretty close to a literal gun to the head, featuring coercion by actual armed agents with guns.
As I explained in my earlier Lawfare article, similar violence could be used to coerce states on a wide range of policy issues. The most obvious example is that of conservative "gun sanctuary" states, which limit cooperation with federal enforcement of gun control laws. If the federal government sent thousands of agents to harass gun owners and disrupt local government operations in order to coerce gun sanctuary jurisdictions into helping the feds, that would surely violate the 10th Amendment. If courts allow such coercion-by-violence, there would not be much left the anticommandeering rule or any other constitutional protection for state autonomy.
While NFIB and other conditional-grant cases dealt with Spending Clause issues, similar reasoning applies here. In both cases, federal government action, even if otherwise legal, becomes unconstitutional if it seeks to coercively usurp state government control over their own resources and personnel. Indeed, the 10th Amendment — a provision explicitly protecting state autonomy — is a more logical basis for restricting such coercion than the Spending Clause.
Menendez decided not to grant a preliminary injunction in part because the "unprecedented" nature of the situation weighs against doing so and in favor of waiting for a full resolution on the merits. Such hesitation is understandable. But it is important to remember that the situation is unprecedented in large part because coercion by armed paramilitary agents is actually more blatant and egregious than the type of commandeering addressed in previous cases.
Judge Menendez's Uncertainty
In addition, Menendez held back because of uncertainty over two other issues. First, though she recognized there was extensive evidence that the Trump administration's motive was to commandeer state resources for immigration enforcement, she suggested other evidence indicated there may be other motives, such as increasing enforcement of the law and combatting welfare fraud.
There has indeed been considerable welfare fraud in Minnesota, some of it committed by Somali immigrants. But there is no reason to think the deployment of thousands of armed federal agents can somehow curb welfare fraud, which requires investigation by accountants and other experts, not armed men in the streets. Similarly, as I have noted previously, it is implausible to think that such a massive effort is needed for enforcement of immigration laws, given that Minnesota has a much lower percentage of illegal migrants in its population than national average. And an administration genuinely interested in politically neutral law enforcement would itself not be engaging in widespread, brazen violations of the law in the process of "enforcement." Ultimately, the evidence overwhelmingly indicates that there would be no such massive federal operation in Minnesota absent a desire to engage in commandeering.
Second, Menendez worried there was no clear basis for determining exactly where to draw the line between legitimate federal law-enforcement efforts and unconstitutional coercion:
Quantitatively, Plaintiffs cannot point to what number of federal officers would demonstrate a de facto Tenth Amendment anticommandeering violation. Qualitatively, there is no clear way for the Court to determine at what point Defendants' alleged unlawful actions (e.g., racial profiling, excessive force, deployment of chemical irritants, wearing face coverings, switching license plates, overusing city parking lots, among others) becomes so problematic that they amount to unconstitutional coercion and an infringement on Minnesota's state sovereignty.
It may indeed be impossible to draw a precise numerical line. Commandeering and coercion are among the many legal doctrines that take the form of standards, rather than bright-line rules. Other examples include the Fourth Amendment's ban on unreasonable searches and seizures and the First Amendment's protection for freedom of speech, which does not draw a clear line between protected pure speech and unprotected speech closely linked to illegal conduct. Despite line-drawing difficulties, courts routinely enforce these doctrines.
Considerable precision is possible here, even if it cannot be absolutely perfect. Courts can and should enjoin federal operations — regardless of scale — that would not have been undertaken but for an unconstitutional motive related to coercion and commandeering. That seems clearly true of Operation Metro Surge. The line becomes even easier to draw when the operations in question also feature apparently extensive illegal actions by federal agents. As already noted, such illegality magnifies the coercion in question.
As Menendez noted, the plaintiffs "made a strong showing that Operation Metro Surge has had, and will likely continue to have, profound and even heartbreaking, consequences on the State of Minnesota, the Twin Cities, and Minnesotans. Since Operation Metro Surge began, there have been multiple shootings of Minnesota residents by federal immigration enforcement agents." In the last few weeks, federal agents killed two Minneapolis residents, Renee Good and Alexander Pretti, and shot another in the leg. The judge added that there was evidence that federal agents "have engaged in racial profiling, excessive use of force, and other harmful actions," and that the administration had done "nothing to refute the negative impacts described by Plaintiffs in almost every arena of daily life, from the expenditure of vast resources in police overtime to a plummeting of students' attendance in schools, from a delay in responding to emergency calls to extreme hardship for small businesses."
When such things are done for the avowed purpose of coercing state and local governments, we have a violation of the 10th Amendment. Menendez should so rule when she decides the case on the merits, and appellate courts should uphold any such decision.
A revised and updated version of my article "Immigration is Not Invasion" now up on SSRN, and also under submission to law reviews. This latest version has additional evidence on the history and original meaning of "invasion." It is also updated with material on the latest developments in ongoing litigation over the meaning of "invasion," most recently the Trump administration's extraordinary admission that their interpretation of the Alien Enemies Act would allow the president to invoke it in response to the "British Invasion" of rock stars, such as the Beatles.
Here is the abstract:
In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as "invasion" under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as "invasion." As James Madison explained in 1800, "Invasion is an operation of war." Illegal migration and drug smuggling do not qualify.
Part I summarizes the history of the "invasion" debate and currently ongoing litigation over it. Part II explains why the broad interpretation of "invasion" is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to "invasion" in the Federalist Papers.
In Part III, I consider the meaning of "invasion" in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters. The more recent US military intervention in Venezuela also cannot be used to justify invocation of the AEA.
Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress' power to declare war and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of "invasion." They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.
Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of "invasion" or the factual issue of whether an "invasion" – properly defined – has actually occurred.
The version on SSRN includes appendices listing all references to "invasion" at the Constitutional Convention, the state ratifying conventions, and in the Federalist Papers. But, for law reviews, I have submitted the appendices as a separate file, and the article could ultimately be published without this material, which can simply be referenced and posted online elsewhere, at my website.
Recently, the University of Arkansas Law School made an offer to a dean candidate, and then promptly rescinded it, apparently because she joined an amicus brief in the transgender athletics case. The AALS and other groups charged this rescission violated norms of academic freedom. Not quite. Individual professors have academic freedom rights, but Deans, in their administrative capacities do not. At state institutions, deans are at-will employees who are appointed by politically accountable bodies.
Ilya Shapiro and I discuss this situation in the Washington Post. Here is the introduction:
The University of Arkansas School of Law hired Professor Emily Suski as dean in early January, but promptly rescinded that offer less than a week later based on "feedback from key external stakeholders."
It turns out that Suski joined a Supreme Court brief arguing that federal law guarantees biological males the right to participate in female sports. That position might seem self-evident in the ivory tower, but in the real world, there's consensus across the political spectrum that this position is wrong as a matter of law, policy and science.
Elite academics predictably cried foul. The Association of American Law Schools charged that the job rescission was a "blatant violation of academic freedom" and a "threat to the legal profession." That group of august law professors might need to go back to school. While individual professors, including Suski in her scholarly capacity, enjoy academic freedom protections, there's no First Amendment right to a deanship. The dean is appointed by the university's governing body as an at-will employee to serve the university's interests. A public university in particular could reasonably have concluded that Suski might have had a hard time interacting with the legislature, executive branch officials, alumni and donors. This red state was the first to ban medical treatment for minors with gender dysphoria.
Perhaps we would have more sympathy for the AALS's claim, but this organization has done nothing to protect conservative dean candidates who are systematically excluded from higher education. Now, legislatures in red states are finally pushing back:
States must ensure that university officials can faithfully serve their communities without alienating either side of the political spectrum. Candidates with obvious blue flags should be vetted so they can effectively interact with "key external stakeholders." They should also be able to credibly deal with a Republican-run Department of Education, as well as state supreme courts that are removing the far-left American Bar Association's monopoly on law school accreditation.
In an ideal world, politics would play no role in dean selection. But we're far from an ideal world. Those who dissent from progressive orthodoxy have been excluded from legal academia for generations — we've both personally felt that sting in our careers — and the AALS has done nothing. But as soon as one progressive dean is axed, the fainting couches come out.
Finally, I am proud to announce my new affiliation as an adjunct scholar with the Manhattan Institute. You will hear more about my work with MI in due course.
But Council Member Peter Ortiz had gotten a temporary order that was in effect for nearly four months; the underlying disputed stemmed from a controversy related to a "Drag Queen story time."
From Ortiz v. Saenz, decided Friday by the California Court of Appeal (San Diego County Superior Court Judge Victor Rodriguez sitting by designation, joined by Judges Mary Greenwood and Cynthia Lie):
Saenz operated a social media account under the username "@ESSJTIMES" which, at the relevant time, was accessible to the public and had almost 80,000 followers. Saenz used the account to disseminate news pertaining to the Eastside San Jose community….
During the time period at issue in this case, Ortiz was a member of the San Jose City Council. In the fall of 2023, Saenz posted a video on his account criticizing another elected member of the San Jose City for promoting a children's event known as "Drag Queen story time." In the video, Saenz claimed the event was "inherently sexual" and posed a threat to children. He included the council member's social media account in his post (a practice commonly referred to as "tag" or "tagging"), after which Saenz's followers began posting negative messages on that council member's account.
Ortiz, in defense of his colleague, used his social media account to report Saenz to the platform for hate speech and misinformation, and posted a statement on his account suggesting that Saenz and his followers were targeting and threatening his fellow council member. Ortiz and his girlfriend, Brenda Zendejas {Saenz alleged Zendejas was also Ortiz's campaign manager}, also posted messages on their accounts asking the public to report Saenz to the social media platform for hateful speech.
In response, Saenz shared their messages on his account, with his added comment stating, in part, "You are throwing a ralley [sic] to label this page a hate page? Are you kidding me. I am only saying this once this last time." Saenz's followers responded by posting negative remarks about Ortiz and Zendejas, including accusing Ortiz of being a pedophile for defending his fellow council member.
A few months later, in December 2023, Saenz posted a video and message on his account referring to Ortiz and the same colleague as "brown puppets" and tagged Ortiz's social media account. Saenz stated that they did "not represent the Latino and Mexican community at all. Especially the majority of the community that is against grooming our children. We need those brown puppets pushing that crap on our children out of City Hall ASAP!" In the video, Saenz called Ortiz a "showered cholo" and alluded to Ortiz being a "sick fuck." Other account users responding to Saenz's post referred to Ortiz as a pedophile.
From Kentucky A.G. opinion 26-01, released Jan. 5 but just posted on Westlaw:
The "basic policy" of the Open Meetings Act … "is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." Under KRS 61.840, "[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency" and "[a]ll agencies shall permit news media coverage, including but not limited to recording and broadcasting."
The Office has previously found that "KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency." Indeed, the only conditions of attendance permitted by the Act are "those required for the maintenance of order."
Regarding the recording of public meetings, the Office has found that public agencies that did not allow members of the public to record their meetings violated KRS 61.840…. For the purpose of KRS 61.840, there is little difference between recording a meeting on a cellphone and live-streaming a meeting on a cellphone. Indeed, KRS 61.840 also requires the "broadcasting" of public meetings to be permitted.
On January 27, in United States v. Hembree, the Fifth Circuit held that the federal felon firearm ban (18 USC 922(g)(1)) based on a conviction for simple possession of methamphetamine violates the Second Amendment. Coincidentally, on March 2 the Supreme Court will hear oral argument in another case that came from the Fifth Circuit, United States v. Hemani, which concerns whether the federal firearm ban by an unlawful user of drugs (18 USC 922(g)(3)) violates the Second Amendment.
The opinion by Judge Higginson, joined by Judge Willett and Judge Engelhardt, is rendered with the backdrop that the Fifth Circuit has upheld the felon-in-possession ban facially, but has recognized the viability of as-applied challenges. Given that the government sustained its burden to show the ban's facial constitutionality, it argued that the burden shifted to Hembree to demonstrate its unconstitutionality as applied to him. The court relegated that argument to a footnote citing Rahimi: "It is the government's burden to demonstrate that the challenged regulation is 'relevantly similar to laws our tradition is understood to permit.'"
While "in some instances, we have remanded to allow party presentation of history and discussion of intervening caselaw before the district court," here "the government provided robust historical discussion in its briefing and specifically 'offer[ed] analogues to other felonies,' for our review as well." It's a good sign that litigants have learned to proffer what they deem to be the historical analogues required by Bruen, given the initial criticisms of the text-history method that lawyers and judges are incapable to doing anything more than analysis of means-ends scrutiny.
But that's where the government fell short. First, it cited historical laws imposing severe punishment for possession of contraband, including "laws punishing the knowing receipt of a stolen horse, the theft of mail, and the counterfeiting and forgery of public securities with death." But in a prior decision, the Fifth Circuit refuted such purported analogues: "Those Founding-era offenses—knowing receipt of a stolen horse, mail theft, and counterfeiting—'concern theft, fraud, or deceit,' not the 'use and sale of addictive drugs.'" None of these alleged analogues are firearms regulations and thus could not possibly demonstrate a historic tradition of firearm regulation.
Second, the government pointed to historical laws "disarming dangerous people," adding that "drug crimes are inherently dangerous," even mere possession, which "entails the dealing with and enriching of drug traffickers." However, the government offered nothing about "the dangerous nature of narcotics" other than the mere fact of Hembree's conviction.
In contrast to the government, which failed to meet its burden of showing that a felony based on drug possession aligned with "the Nation's history and tradition of disarming individuals whose past criminal conduct demonstrates a special danger of misusing firearms," Hembree pointed out that possession of drugs, including opium, was not unlawful at the Founding and that non-medical drug use became unlawful only in the 20th century. Moreover, without evidence of intoxication at the time the person used a firearm, no historical analogue existed based on a person's habitual or occasional drug use. That is, of course, the issue right now before the Supreme Court in Hemani.
The government relied on Rahimi to urge "dangerousness" as the criteria, but that was at too high a level of generality. As the court replied, "Indeed, not one piece of historical evidence suggests that, at the time they ratified the Second Amendment, the Founders authorized Congress to disarm anyone it deemed dangerous."
Judge Willett wrote a concurring opinion, as he often does, to make some broader points questioning the overgrowth of federal power. When the Federalists advocated adoption of the Constitution without a bill of rights because powers not delegated are reserved, Patrick Henry replied: "Why not say so? Is it because it will consume too much paper?"
Even without the Second Amendment, does the felon-in-possession ban rest on an enumerated power of Congress? The Constitution delegates power to Congress "To regulate Commerce … among the several States." Judge Willett writes: "Perplexingly, the Supreme Court once declared that this power 'is not confined to the regulation of commerce among the states.'" That's from United States v. Darby, 312 U.S. 100, 118 (1941). More recently, the Court has tried to better define and limit the commerce power.
Hembree's argument that no enumerated power exists for the felon ban is foreclosed by Fifth Circuit precedent. However, as Judge Willett wryly remarks, "where the enumerated-powers belt slips—as the Anti-Federalists foresaw—the Second Amendment suspenders hold, at least for Hembree." And Judge Willett "remain[s] open to reconsidering whether § 922(g)(1) truly falls within Congress's enumerated powers."
It is noteworthy that the Hembree court engaged in no discussion whatever about the dangers of methamphetamine, as would have been highlighted in the pre-Bruen days of intermediate scrutiny. The drug originally became popular in Germany in the 1930s. Because it could keep soldiers alert and aggressive, it became a staple of Germany's Blitzkrieg attacks. As shown in a recent documentary, the Brits and Americans discovered its enhanced qualities and issued doses by the millions to their soldiers.
I first encountered "crystal meth" or "crank" in the '80s when court-appointed to represent a defendant on federal gun charges. The guys on a construction crew were addicted to the drug. Their dealer sought to avoid prosecution for trafficking by introducing the crew members to an undercover ATF agent who pretended to be the top dealer. He said no more meth to you guys unless you get me firearms (that was his hook to bring gun charges). They couldn't find any real guns so they built pipe bombs for the undercover agent. The ATF agent created the crime to get credit for having it prosecuted.
The government should not seek cert in Hembree. To date, both the Biden Administration in Rahimi (involving a violent wife beater) and the Trump Administration in Hemani (involving a pot head who also allegedly possessed cocaine and supposedly had connections to terrorism) have brought cases to the Court with unsympathetic defendants and fact patterns. It would be unfortunate if meth heads, gang bangers, and stoners became the test case rights claimants in foundational Second Amendment cases.
Methamphetamine is listed on Schedule II as it does have medical uses, but it can be addictive and dangerous. We'll see what the Supreme Court does with Hemani, which concerns gun possession by a marijuana user.
In my remarks, I explained how the decisions in both FCC v. Consumers' Research and Loper Bright Enterprises v. Raimando are entirely consistent with what I have called "The Delegation Doctrine." Indeed, I might even suggest that these two decisions largely confirm the hypothesis.
In short, the claim is that, while the Supreme Court has been unable or unwilling to reinvigorate the nondelegation doctrine, it has heightened its focus on the question of delegation and, in particular, carefully scrutinizes the extent to which federal agencies are exercising power that Congress affirmatively delegated to them. This principle, I suggest, unifies wide swaths of the Court's recent administrative law jurisprudence, including its handling of Chevron, the Major Questions Doctrine, and its resolution of nondelegation claims. This argument grows out of a serious of articles I have written in this space and is summarized in this article from the Harvard Journal of Law & Public Policy which was written and published before the Loper Bright decision.
For those interested in the discussion of this and related questions, video of the forum is below:
The New York Times reports that Gregory Bovino, the Border Patrol Field Leader, criticized sabbath observance by Daniel Rosen, the U.S. Attorney for the District of Minnesota:
A day before six career federal prosecutors resigned in protest over the Justice Department's handling of the killing of Renee Good in Minneapolis, lawyers in the office had a conversation with Gregory Bovino, the Border Patrol field leader, that left them deeply unsettled.
According to several people with knowledge of the telephone conversation, which took place on Jan. 12, Mr. Bovino made derisive remarks about the faith of the U.S. attorney in Minnesota, Daniel N. Rosen. Mr. Rosen is an Orthodox Jew and observes Shabbat, a period of rest between Friday and Saturday nights that often includes refraining from using electronic devices.
Mr. Bovino, who has been the face of the Trump administration's immigration crackdown, used the term "chosen people" in a mocking way, according to the people with knowledge of the call. He also asked, sarcastically, whether Mr. Rosen understood that Orthodox Jewish criminals don't take weekends off, the people said.
Mr. Bovino had requested the meeting with Mr. Rosen to press the Minnesota office to work more aggressively to seek criminal charges against people Mr. Bovino believed were unlawfully impeding the work of his immigration agents.
Mr. Rosen delegated the call to a deputy. During the call, with a handful of prosecutors listening in, Mr. Bovino complained that Mr. Rosen had been unreachable for portions of the weekend because of Shabbat. Mr. Bovino's remarks followed his complaints about having difficulty reaching Mr. Rosen.
I'll assume this report is accurate.
Bovino's comments, are deeply unfortunate. For an administration that is so deeply committed to fighting antisemitism and protecting religious liberty, I don't see how these sorts of remarks can stand. Indeed, Trump's daughter and son-in-law are sabbath observant Jews. Bovino's wisecrack about the "chosen people" reflects an even-deeper prejudice. The details might come out in some future Giglio proceeding.
Still, I think Bovino's comments reflects a far greater issue. Some people have a very hard time understanding why observant Jews follow certain religious beliefs. The most obvious example are the dietary rules, known as the laws of Kosher. People simply cannot understand why Jews will not eat pig or lobster. They get annoyed when we ask whether some dish has chicken or pork in it; as if it makes a difference? Moreover, they cannot fathom why chicken, which is an kosher animal, cannot be eaten in a non-Kosher restaurant. (The rules for slaughtering and preparing kosher meat are extremely complex.)
Another example is the rules on shabbat. The biblical prohibition on working during the sabbath has many practical consequences. Observant Jews cannot drive and cannot use electronic devices. They can't even write with a pen or pencil. They can't even flip on a light switch. These rules do not only apply on Shabbat (Friday night till Saturday night). These rules apply during approximately eleven days every year where there is an observance that prohibits work. But even well-meaning people do not understand.
There is no shortage of cases to illustrate the point that courts misunderstand and misapply even basic practices of Judaism. In one case concerning the reach of the Religious Freedom Restoration Act, a judge gave the example of a law requiring someone to "turn on a light switch every day" as a statute that could not conceivably impose a substantial burden on religion. Oral Argument at 1:00:40-50, E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015) (No. 14-20112), vacated and remanded, 578 U.S. 403 (2016). However, he was mistaken. That requirement would substantially burden Orthodox Jewish religious practices. On the Sabbath, Jews are forbidden from kindling flames, and Orthodox rabbis agree that this prohibition extends to turning on a light switch. See Exodus 35:3; see also Aryeh Citron, Electricity on Shabbat, Chabad.org, https://tinyurl.com/mrx4ynkk. The judge certainly did not intend to demean Judaism or suggest that Jewish practices should not qualify for protection. He was simply unaware of a practice that is central to the life of Orthodox Jews.
I doubt Bovino is familiar with any of these rules. He simply exhibits frustration with the U.S. Attorney not agreeing to meet with him on Shabbat. He is not alone.
I can think of at least one other recent example where a member of the executive branch expressed frustration that an observant Jew was not responsive on Shabbat.
Think back to Friday, March 28, 2025. That afternoon, Judge Murphy in Boston (where else?) issued a nationwide injunction blocking the government from removing three aliens to South Sudan. This is the case that would become DHS v. D.V.D. That evening, Erez Reuveni, an employee in the Department of Justice, frantically tried to reach certain individuals at DOJ to learn whether aliens were being staged for removal. He worried that the government would not comply with the purported universal injunction. Reuveni would describe his process in his whistleblower complaint:
With this clear disconnect, it was evident to Mr. Reuveni that DHS had received direction contrary to the guidance OIL had provided concerning the scope of the injunction. Mr. Reuveni had attempted to contact Ensign and Flentje multiple times by phone between 10:40 p.m. and 12:04 a.m., and [Acting Assistant Attorney General Jacob] Roth via email, but no one answered.40
FN40: 40 Ensign was teleworking from Arizona as he often did and later told Mr. Reuveni that he missed the calls because his phone was silenced.
A footnote explains why Ensign did not respond, but the implication is that Roth simply ignored the calls. I can confidently state that Jacob Roth (a longtime friend) was not checking his phone on Friday night because it was Shabbat. I suspect Reuveni, based on his background, knew about Roth's observance. Roth was my co-counsel for the JCRL amicus brief I referenced above.
This sort of conflict happens a lot. Jewish students, in particular, often have a difficult time with deadlines, exams, and other extra-curricular assignments that fall on Shabbat or holidays. It is not intentional. People simply do not consider Jewish observance. For whatever reason, briefs tend to be due by the close of business on Friday. In winter months, that time usually falls after the beginning of shabbat. And it would be reckless to risk filing a brief when the computer needs to shut before the filing deadline. Indeed, during the Foreign Emoluments litigation, Seth Barrett Tillman and I had a string of briefs that were all due during Jewish holidays. (If you ever wondered why we filed some of our briefs early, now you know).
Let me take a step back. I have been giving a lot of thought to antisemitism of late. I now have to explain this pernicious concept to my young children. I am convinced that one of the reasons why antisemitism exists in every generation is because our customs are simply difficult to understand, and make us unable to interact on other people's timelines. Why can't Jews do anything on Friday night to Saturday night? Why can't Jews eat the same foods we eat? Why can't they break bread with us at our table? Why are they so different? To be sure, all religions have unique customs, but Judaism is particularly rigorous in how these rules are enforced. Other faiths are more permissive. These rules have the necessary consequence of excluding Jews from interacting with non-Jews in many fashions. I am developing this theme for a future writing. Stay tuned.
