Plaintiff also objects to the Magistrate Judge's refusal to consider one of its sanctions requests (specifically, to resume Defendant's deposition under special conditions) because the request was presented in a footnote. Plaintiff characterizes this refusal as contrary to law, arguing that courts routinely consider unopposed arguments, even when raised in footnotes, and that Magistrate Judge Reinhart's reliance on Sony Music Ent. v. Vital Pharms., Inc. (S.D. Fla. 2022), was misplaced. This objection is overruled. While a court certainly can address a properly preserved argument made in a footnote, Plaintiff cites no Eleventh Circuit or Supreme Court precedent requiring consideration of such buried arguments. Magistrate Judge Reinhart did not clearly err in declining to consider that request, made in a footnote, in the context of Plaintiff's many other requests.
And here's a similar passage from Judge William Dimitrouleas's decision in Sony:
Plaintiffs also request summary judgment on over a dozen of Defendants' affirmative defenses in footnotes throughout their motion. As Defendants point out, addressing legal arguments in footnotes is an incorrect method to present substantive arguments on the merits or otherwise request relief from the Court. Connor v. Midland Credit Mgmt., Inc., No. 18-23023CIV, 2019 WL 717413, at *4, n. 1 (S.D. Fla. Feb. 20, 2019) (citing Mazzeo v. Nature's Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n.1 (S.D. Fla. Nov. 12, 2014) (not considering argument raised in a footnote); see also Mock v. Bell Helicopter Textron, Inc., 373 F. App'x 989, 992 (11th Cir. 2010) (deeming argument waived because it was raised only in a footnote)). Thus, the Court will not address Plaintiffs' request for summary judgment as to Defendants' affirmative defenses.
By some estimates, William Howard Taft weighed nearly 350 pounds at 5 foot, 11 inches. At the Sixth Circuit courthouse in Cincinatti, Taft's chair is on display. Is has the diameter of a barrel. In 1909, Taft was riding a horse at the Grand Canyon. The poor horse "appeared to be unequal to the President's bulk" and gave way. (It seems the horse broke an ankle or leg.) Chief Justice William Howard Taftalso wrote the most robust conception of presidential power in Myers v. United States.
This history brings me to the oral argument in Trump v. United States. There were extended discussions of what process is due when the President seeks to fire an FTC Governor "for cause."
Paul Clement, who represented Cook, used a very memorable phrase to describe the process afforded by President William Howard Taft:
JUSTICE THOMAS: With that said -with that said, what would the hearing look like and what would the review look like?
MR. CLEMENT: So I agree with General Sauer that the president would have a fair amount of discretion in how he or she wanted to fashion that hearing. I mean, one example we have historically is President Taft, and he sort of gave the removed officials the full Taft, and it was notice, opportunity for a hearing before an impartial tribunal that, you know, serendipitously included future-Justice Frankfurter, and then he --I mean, so that's kind of the maximum that the president could give. But we're not suggesting that you need to give the full Taft. The president would have a lot of flexibility on that.
The "Full Taft." What a perfect line. It wasn't a forced attempt at humor, as we've seen elsewhere. It was a very subtle way to describe what Taft did, and it was also memorable allusion to Taft's girth.
Clement leveled up, and invoked Roberts Rules of Order, a nod to another Justice!
MR. CLEMENT: And, look, I --I --I agree with General Sauer. This Court is not going to dictate, like, you know, here is Roberts Rules, you know, have at it. But I think this Court can do something useful, which is essentially to create an incentive for the executive to provide something that's a little bit more protective, a little bit closer to Taft than something incredibly informal. That's -JUSTICE
By the end of this term, Paul Clement will have argued nine or event ten cases--roughly twenty percent of the merits docket. I think this is a modern record for a lawyer not in the SG's office. (During OT 2023, SG Prelogar argued ten cases.)
Even where I disagree with Clement (which seems to be happening more and more of late), I still marvel at his advocacy skills. And on that point, it is a credit that Clement can argue cases on both sides of the aisle. Progressive litigators are less likely to take that path. I still have a hard time accepting with Neal Katyal's defense of the non-delegation doctrine in the tariffs case.
This post is my contribution to the Institute for Free Speech symposium on the 50th anniversary of Buckley v. Valeo, which is jointly published by IFS and the Volokh Conspiracy blog:
This year marks the fiftieth anniversary of Buckley v. Valeo, the 1976 ruling in which the Supreme Court held that federal laws limiting private parties' expenditures on campaign-related speech violate the First Amendment. Critics blame Buckley for a host of current problems in our political system, such as the disproportionate political influence of wealthy people and the spread of misinformation. Our current political situation does indeed have serious flaws. But a contrary decision would not have averted these developments and would have made things much worse in many respects.
Had the Court accepted the fashionable argument that "money isn't speech," that decision would have gravely imperiled freedom of speech and other constitutional rights. Similar dangers would have arisen if the Court had maintained the rule that campaign-related free speech rights do not apply to corporations, which was eventually rejected in in subsequent case of Citizens United v. Federal Election Commission (2010). Contrary decisions in these cases would also have exacerbated rather than ameliorated the problems of voter ignorance and misinformation. Nor would they have significantly reduced political inequality. A contrary decision would have exacerbated—rather than alleviated—the problems of voter ignorance and misinformation, while doing little to reduce political inequality.
Critics of Buckley, Citizens United, and other rulings protecting expenditures on campaign speech love to emphasize that "money isn't speech." That is true enough in a literal sense. But the exercise of almost every constitutional right depends on the use of resources for which monetary compensation is paid. Consider, for example, the right to use contraceptives upheld by the Supreme Court inGriswold v. Connecticut. Just as money isn't speech, money isn't contraception. But a law banning or severely restricting the use of money to purchase contraceptives would clearly violate the constitutional right upheld in Griswold. Otherwise, the government could effectively gut that right simply by barring or severely restricting the purchase of birth control devices.
The same is true of most other constitutional rights. For example, money isn't religion. But a law banning or restricting the use of money to fund religious institutions and services obviously violates the Free Exercise Clause of the First Amendment.
Moreover, the vindication of constitutional rights often requires the filing of lawsuits, which almost always cost money. A law barring the expenditure of funds on such litigation clearly violates the Constitution, even though supporters of such legislation could inveigh that "money isn't litigation."
Consider the Trump Administration's targeting of law firms that engage in constitutional litigation against his policies. Courts have repeatedly ruled against these efforts on First Amendment grounds. But under the "money isn't speech" approach, the administration could instead attack those firms and others on the basis that "money isn't litigation." Thus, litigation protecting constitutional rights could be gutted by laws or regulations barring or restricting the use of money to fund it.
In the Citizens United case, the Supreme Court rightly ruled that Buckley's principles apply to speech by corporations and unions, as well as to that by individuals. Critics argue that this was wrong because corporations are not people, but "state-created" entities whose rights the government can define as it sees fit.
If applied consistently, this logic would destroy freedom of the press. After all, most major media entities are corporations or owned by them. On this view, the government would be free to censor the New York Times, Fox News, CNN, and so on. The same applies to speech on social media sites organized as corporations or owned by them, such as Twitter/X, Facebook, Bluesky, and others.
The same reasoning applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If "state-created" entities don't have free speech rights, they don't have any other constitutional rights either. The supposed power to define the rights of state-created entities cannot be limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property without paying compensation because the Takings Clause of the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches which are organized as nonprofit corporations). And so on.
Moreover, corporations are not the only "state-created" entities out there. Universities, private schools, charities, religious institutions,, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all or most have special government-created privileges and obligations of various kinds. If corporations are state-created entities that can be denied constitutional rights, the same is true of a vast range of other private organizations.
Politicians could suppress opposition speech and activism by such groups by enacting laws or regulations denying them their legal organizational status unless they abjure speech disfavored by those in power. Even if you trust political leaders of your own preferred party with such power, I suspect you would not have similar confidence in those of the opposing party. My own view is that none of them can be trusted with it.
In recent years, some critics of Buckley and Citizens United have blamed these rulings for the rise of misinformation and exploitation of voter ignorance. They argue that wealthy people such as Trump and Twitter/X owner Elon Musk have exploited these decisions to spread lies and deceptions, influencing electoral outcomes. I agree that political ignorance and misinformation are serious problems, and I have spent much of my career analyzing these dangers. I also agree that Trump and his allies have extensively exploited voter ignorance, in the process, proving that ignorance is an even more serious problem than I previously believed (though the more general problem of voter ignorance long predates the rise of Trump).
But government restrictions on speech financed by wealthy people or corporations are not a good solution to these problems and would likely make them worse. Evidence from around the world shows that right-wing populist movements like Trump's, and the misinformation they promote, disproportionately draw their support from lesser-educated and poorer voters. That is a key reason why we increasingly have a "diploma gap" in US elections, and why the GOP is now the party that tends to benefit from higher voter turnout. Wealth and education are not the same, but the two are highly correlated. Some wealthy influencers and donors do indeed spread misinformation and bogus conspiracy theories. Musk is a prominent example. But, on average, affluence is inversely correlated with susceptibility to such tropes.
Regulations restricting the speech expenditures of wealthy and better-educated people will actually further empower the lesser-educated and more ignorant elements of the electorate, which are also the ones most susceptible to misinformation. Nor are such regulations likely to significantly impede the spread of that misinformation. Fundamentally, the demand for misinformation is a much more serious danger than the supply.
Even if individual wealthy people and corporations are limited in their ability to exploit that ignorance and bias, others will fill the void. Likely candidates include media organizations, social media "influencers," unscrupulous politicians (Trump is just a particularly egregious example), activist groups, and more.
In theory, the government could address this problem by comprehensively suppressing misinformation, regardless of the source. But in addition to virtually destroying freedom of speech, that practice would give the government nearly unconstrained power to suppress opposition. It is unlikely that government would use that power to target misinformation evenhandedly. Rather, it would likely weaponize it to crush opposition speech (whether misleading or not), while continuing to spread its own misinformation and lies. Historically, governments have themselves been major sources of misinformation and deception. A state with broad powers to censor can spread its lies more effectively than otherwise.
Finally, there is the argument that spending on campaign speech must be restricted because it is unjust that wealthy people might otherwise exercise greater political influence than others. Wealth can indeed be a source of political inequality. But it is far from the only such source, and by no means the most egregious.
Celebrities, skilled demagogues, "influencers," politicians, and others also have vastly more political influence than the average voter. When Trump first ran for president in 2016, he actually spent little of his own money. His success was in large part a result of his vast preexisting celebrity. Even a law professor who writes for a prominent blog—like the present author—may exercise much more influence than the average citizen, even if far less than a celebrity.
Many of these other sources of influence are far more unequally distributed than wealth. We have a lot fewer celebrities than people wealthy enough to pay for a television or online ad campaign.
Restricting campaign spending is likely to accentuate the potency of these other, more unequally distributed sources of influence. It will become more difficult for relatively unknown candidates to successfully challenge celebrities and incumbent politicians.
Nor is the influence arising from these other resources somehow better or more meritorious than that arising from wealth. Celebrity status, skill at demagoguery, and being an "influencer" are far from being correlated with merit, good judgment on policy issues, or even basic human decency. Again, Trump is just one particularly egregious example of the lack of correlation between the former list of traits and the latter.
Even if there were some objective way to determine how much influence a given person or group deserves to have over our political discourse, it is highly unlikely that real-world government would identify that rule and scrupulously implement it. Real-world politicians and bureaucrats are far more likely to use that power to strengthen their own hand against potential opposition. The case for freedom of speech rests on the proposition that the state cannot be trusted to make such determinations. As the Buckley Court rightly concluded, "[t]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
From Nuvola, LLC v. Wright, decided Nov. 21 by Hennepin County (Minn.) Judge Laurie Miller:
For the reasons the Court has outlined above, the Court finds Mr. Knaak's failure to check the legal authority cited in his brief and his reliance on non-existent case law in his advocacy before this Court raises a question as to whether he breached his duty of competence to Ms. Wright. The Court will refer Mr. Knaak to the Office of Lawyer's Professional Responsibility (OLPR) for appropriate action. Any mitigating factors proffered by Mr. Knaak, including his compliance with his obligation to educate other lawyers about this issue under this Order, may be relevant to a future ethics investigation and any subsequent recommendations by the OLPR, but the Court will not analyze them here as the Court does not make explicit findings on or enforce ethics rules.
The Court also finds troubling Mr. Braun's [i.e., opposing counsel's] failure to identify or bring the non-existent case citations to the Court's attention before the hearing on the motion to compel arbitration. TheCourt should not be left as the last line of defense against citations to fictional cases in briefs filed with the court.
While Mr. Braun did not create or rely on the fake citations, he also did not detect them. Instead, he admitted he did not review the cases cited by his opponent. If he had checked out the citations in the brief to which he was responding, he no doubt would have brought the issue to the Court's attention by the time of the motion hearing, and that would have allowed the Court to take the non-existence of the cited cases into consideration as it heard the argument on the merits of Defendant's motion to compel arbitration, instead of leaving the Court to discover that issue on its own, after the hearing was concluded.
The Court does not find Mr. Braun's conduct to be sanctionable, as he did not cite any non-existent cases to the Court. [Nonetheless], the Court reminds counsel that it is the obligation of counsel on both sides to respond to each other's arguments, including completing a basic cite-check of the cases cited by the other side.
From Wentworth v. Steinmetz, decided Nov. 12 by the Pa. Super. Ct. Judge Mary Jane Bowes, joined by Judges Victor Stabile and John Bender (see the full opinion for more):
Given the procedural posture of this case, we accept as true the following facts alleged in the Wentworths' complaint. The Wentworths purchased a residential property from Steinmetz …. After moving in, the Wentworths discovered under rugs in the basement a tile floor that incorporated both a swastika and what they perceived to be a Nazi eagle. The Wentworths claimed that they would not have purchased the home had they been aware of the Nazi symbols tiled into the floor, that they could not be expected to live in or sell the home in that condition, and that it would cost $30,000 to replace the floor. Accordingly, they maintained that Steinmetz was liable for compensatory and punitive damages due to his failure to disclose the defect….
{Steinmetz has denied creating the floor pattern in support of Nazism, citing the history of the swastika predating its use by the Nazis. See Steinmetz's brief at 8. The Wentworths acknowledge that the swastika is an ancient symbol that had been used around the world, but suggest that since it is here "styled in the fashion of that used by the Nazis," and accompanied by the German eagle, no reasonable person would believe that this is Native American or Buddhist imagery. In resolving this appeal, we view Steinmetz's subjective intent as irrelevant and accept the Wentworths' allegations that these are pro-Nazi emblems and would likely be viewed as such by guests to their home and prospective buyers.}
The Order raises the inference that his actions were targeted for their message; without the Order, there would have been a much stronger inference that he was prosecuted just for the illegal fire lighting (in violation of valid park safety regulations).
From Chief Judge James Boasberg's decision Tuesday in U.S. v. Carey (D.D.C.):
You cannot falsely shout fire in a crowded theater. What about lighting a fire in a crowded park? After President Donald Trump issued an executive order directing the Department of Justice to prosecute anyone who engages in the protected speech of burning the American flag, Defendant Jan Carey marched to Lafayette Park and burned a flag in protest.
He stands charged with violating park regulations that prohibit setting a fire outside a designated area or receptacle and lighting a fire that damages property or threatens public safety…. The Court holds that the regulations do indeed apply to Carey's flag burning, but it finds that he is entitled to proceed with a further inquiry into whether he is being prosecuted to punish him for his allegedly illegal actions or for his constitutionally protected speech….
The First Amendment protects burning the American flag. Texas v. Johnson (1989). Yet last August, President Trump issued an executive order decrying flag burning and announcing, "My Administration will … prosecute those who … otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority." The order noted that flag burning might violate several "content-neutral laws" that fight "harm unrelated to expression, … such as open burning restrictions … or destruction of property laws."
Outraged, Carey grabbed an American flag and headed to Lafayette Park, which sits right across from the White House. He laid the flag down on a brick path and, clutching a lighter in one hand and a megaphone in the other, declared that he had served in the Army for twenty years and "fought for every single one of your rights to express yourself …. There's a First Amendment right to burn the American flag. The [President] signed an executive order today saying that it was illegal to burn the American flag." Gesturing at the White House, Carey announced, "I'm burning this flag as a protest to that illegal fascist President that sits in that house." He then bent down and lit the flag on fire. Officers on the scene eventually extinguished the burning flag, leaving its charred remains and some scorched bricks underneath….
An excerpt from Judge Joshua Dunlap's opinion concurring in the denial of rehearing en banc yesterday in StandWithUs Center for Legal Justice v. MIT(from my research, just the third opinion he has written since joining the court in November):
This case touches on the intersection of the First Amendment and Title VI. As such, it presents difficult issues relating to the constitutional guarantee of freedom of speech and the scope of antidiscrimination laws—and it does so in the fraught context of hot-button geopolitical controversies and the insidious reality of antisemitism. In my view, the panel went further than it ought to have gone to resolve the present dispute; nevertheless, I do not believe that the arguments raised justify rehearing en banc. I write separately to briefly note my concerns and rationale for denying rehearing….
[A]ntidiscrimination law, of necessity, only provides a partial remedy for antisemitism because of our concomitant dedication to freedom of speech. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The First Amendment, however, prohibits government restrictions on speech based on its message, ideas, subject matter, or content, and provides "special protection" to speech relating to matters of public concern—even if it is outrageous. Title VI must therefore be applied with care for the constitutional problems that would arise if it were construed to suppress political speech. Cf. Honeyfund.com Inc. v. Governor (11th Cir. 2024); Saxe v. StateColl. Area Sch. Dist. (3d Cir. 2001); DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).
The panel addressed this tension by, first, concluding that Title VI does not require a university to "quash protected speech," and, second, concluding that the protesters' actions "did not render their speech antisemitic, much less unprotected." As to the first conclusion, the panel affirmed that speech on matters of public concern is specially protected under the First Amendment, including on college campuses. The panel reached the latter conclusion to avoid determining whether racist speech can be punished under Title VI without violating the First Amendment. I have some concerns with the panel's approach….
[M]y central concern … relates to the panel's determination that the speech alleged in this case was not even plausibly antisemitic…. The panel acknowledges the existence of an "ongoing debate as to the relationship between anti-Zionism and antisemitism—debate that our constitutional scheme resolves through discourse, not judicial fiat." But even as it makes this statement, the panel seems to impose just such a resolution by concluding that statements such as "Palestine will be free, from the river to the Sea!" and "There is only one solution! Intifada revolution!" were not—at least in the context of the facts alleged—antisemitic. But I find it at least plausible that, when made in the immediate aftermath of "the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence," such phrases support an "inference of animus towards Jews."
In this fourth post on our recently published article, we explain how a textualist reading of Section 702 avoids serious constitutional questions under Title VII.
Church Autonomy
The First Amendment Religion Clauses guarantee a religious organization autonomy "with respect to internal management decisions that are essential to the institution's central mission." Included within that autonomy are decisions about who will lead the organization, the shape of its religious beliefs, how to resolve internal religious disputes, and how the organization operates.
A corollary of the church autonomy doctrine is the ministerial exception. It categorically protects a religious organization against a claim of employment discrimination when the claimant is a "minister," meaning a religious leader or one who is entrusted with transmitting the faith.
Some might argue that a religious organization's freedom to make religiously driven employment decisions ends with the ministerial exception. We argue that's wrong. And earlier this month, the Ninth Circuit agreed, holding in Union Gospel Mission of Yakima, Washington v. Brown that the church autonomy doctrine protects a religious organization's freedom to hire non-ministerial employees who are aligned with the employer's faith.
Reading Section 702 as a bare co-religionist privilege would spark substantial questions about Title VII's compatibility with the church autonomy doctrine. To pick one example, a Catholic organization could be liable for choosing a candidate for a key position from among its all-male priesthood. Results like that would interfere with the core of church autonomy—a church or faith-based organization's "internal management decisions that are essential to the institution's central mission."
Title VII could then be on a collision course with the First Amendment. A textualist reading of Section 702 avoids that problem by allowing religious employers to make religious judgments about employment while holding them accountable for employment decisions that discriminate for non-religious reasons.
Immigration officers assert sweeping power to enter homes without a judge's warrant, memo says
WASHINGTON (AP) — Federal immigration officers are asserting sweeping power to forcibly enter people's homes without a judge's warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches. The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates say collides with Fourth Amendment protections and upends years of advice given to immigrant communities.
The memo is here. The specific subject is what are known as Form I-205 Warrants, which are signed by immigration officials and not regular judges. As I read the memo, DHS's position is that they authorize ICE to enter homes based on Form I-205 orders everywhere except in the Central District of California—with that exception due to a 2024 ruling in that district, Kidd v. Mayorkas. Unfortunately, however, the memo does not include any legal analysis.
This raises a big question: Can ICE enter a home to make an arrest without a judicial warrant?
The standard view has been that administrative warrants can't authorize home entry because they're executive branch orders, and the executive branch can't be in charge of deciding whether to give itself a warrant. Under Payton v. New York, 445 U.S. 573 (1980), the government needs an arrest warrant to enter a home to make an arrest. But Payton refers to a "judicial officer" inserting his judgment "between the zealous officer and the citizen," and the immigration officer who signs a Form I-205 is not a "judicial officer." That's the traditional thinking.
That thinking is captured by Judge Wright's reasoning in the Kidd v. Mayorkas opinion. Judge Wright was addressing the broad category of administrative warrants, which included the subcategory of Form I-205 warrants, and here's what he wrote:
A judicial "arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," Payton, 445 U.S. at 603, 100 S.Ct. 1371, and "consistent with the Fourth Amendment, immigration authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge," Gonzalez v. U.S. Immigr. & Customs Enf't, 975 F.3d 788, 825 (9th Cir. 2020). However, as the Court has previously noted, (see Order re Mot. Dismiss, ECF No. 58), the Supreme Court has expressly declined to consider whether an administrative warrant satisfied the requirements for "warrants" under the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 230, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).
Rather, case law supports the need for independent judgment in issuing warrants. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) ("The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause…. Thus, an issuing magistrate must … be neutral and detached."); Coolidge, 403 U.S. at 449, 91 S.Ct. 2022 ("[T]he whole point of the basic rule … is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.").
Here, not all case administrative warrants are reviewed by an independent officer. There are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as "[o]ther duly authorized officers or employees of [DHS] or the United States who are delegated the authority." 8 C.F.R. § 287.5(e)(2). For example, a Form I-205 (Warrant of Removal) is reviewed by an ICE supervisor who signs on behalf of the Field Office Director and not by any judge (immigration or otherwise). (Decl. Anne Lai ISO Pls.' Opp'n DMSJ Ex. 12 ("Giles Dep.") 39:23-40:24, ECF No. 492-3.) Because the administrative warrants at issue here lack the independent assurance guaranteed by the Fourth Amendment, they do not immunize Defendants' conduct. This is also consistent with ICE training materials, which affirm "that administrative warrants do not authorize entry into a dwelling without consent." (DSUF 25.)
We don't know the specific basis for DHS's disagreement with that position. But if I had to guess, I would guess that they read Abel v. United States, 362 U.S. 217, 230 (1960). differently than did Judge Wright. In Kidd, above, Judge Wright says that Abel expressly declined to address whether administrative warrants are Fourth Amendment warrants. Technically, that's true. But if you read Abel, Justice Frankfurter is saying that the Court won't hear the defendant's argument that administrative warrants are not valid Fourth Amendment warrants because the defendant did not make the argument below—and Frankfurter drops a bunch of hints that he would be inclined to say that they are valid. Here's the beginning of the discussion from Abel:
During the first Trump Administration, the President's social media feed was a regular feature of federal court litigation. Courts cited Trump's tweet in cases concerning the travel ban, the cancellation of DACA, and more. Judges looked to these postings for insights into Trump's true intentions.
In Trump v. Cook, the President's social media has once again come to the fore. On August 20, 2025, Trump posted to Truth Social that Federal Reserve Governor Lisa "Cook must resign, now!!!" And, on August 25, Trump sent a letter to Cook purporting to fire her.
The traditional conception of due process requires notice and an opportunity to respond. The Solicitor General argued that the August 20 posting constituted notice. Then, over the ensuing five day period, Cook had an opportunity to respond. Thus, due process was complied with.
Justice Jackson was incredulous of this argument. In this exchange with Solicitor General John Sauer, Jackson doubts that Cook even was notified:
JUSTICE JACKSON: What is the removal order? The -Truth Social post?
GENERAL SAUER: It's the --no. It's the August 25th letter. I think it's Doc 1-4 in the district court. But the removal order addresses that. The evidence is you have mortgage applications within two weeks of each other that make clearly conflicting representations.
JUSTICE JACKSON: Was Ms. Cook given the opportunity in some sort of formal proceeding to contest that evidence or explain it?
GENERAL SAUER: Not a formal proceeding. She was given an opportunity in public because she was notified -
JUSTICE JACKSON: In the world?
GENERAL SAUER: Yes.
JUSTICE JACKSON: Like, she was supposed to post about it and that was the opportunity to be heard -
GENERAL SAUER: Yeah.
JUSTICE JACKSON: --that you're saying is --was afforded to her in this case?
GENERAL SAUER: Yes, and she's had plenty of opportunities in the ensuing months where we've had ongoing litigation where there's never been a personal statement addressing that or --or justifying it.
I have been tracking the Affordable Care Act since its inception in 2009. And over this time, virtually every economic forecast about the law has proven to be wrong. There were estimates about how Obamacare would reduce the deficit, increase the number of Americans who are insured, reduce costs, and so on. None of these predictions from 2009 have proven accurate. And in fairness, a lot happened! Obamacare became a political football, the Supreme Court rewrote the Medicaid expansion, and the mandate penalty was repealed in 2017. The law was never allowed to go into effect as intended. But that is reality. Politics always intervenes in the real world.
The Congressional Budget Office is notorious for making predictions based on unstated assumptions that fail to account for foreseeable events. I have often wondered whether there is a liberal asymmetry here, where the CBO underestimates the benefits of spending more money, and overestimates the harms of spending less money. Liberal policies will always score better than conservative policies. But I lack the means to quantify this question. Still, despite all of these problems, CBO estimates are used to affect public policy.
The latest example in this saga has been the CBO's estimates concerning Obamacare enrollment. CBO predicted that if ACA enhanced subsidies were not renewed, enrollment would drop by more than 7 million. This forecast stimulated a vigorous debate in Congress, which nearly led to legislation. But, as things turned out, the estimate was not accurate. Not even close. The Wall Street Journal breaks down the numbers:
ObamaCare's annual open enrollment ended Thursday, and what do you know? The media-fueled panic over the expiration of the pandemic-era enhanced subsidies turned out to be a false alarm.
The Centers for Medicare and Medicaid Services (CMS) reported this week that 22.8 million Americans have signed up for ObamaCare plans as of January 3. That's down from 24.2 million last year. People could still sign up for plans on the federal exchange through Thursday, and some states have extended their open enrollment through the end of the month.
But even if there are few new sign-ups, enrollment is still running higher than it was in 2024—when the sweetened subsidies were available. The 1.4 million decline in sign-ups compared to 2025 enrollment is also less than was predicted. The left-leaning Urban Institute projected that ObamaCare's subsidized enrollment would drop by 7.3 million.
The Congressional Budget Office's ObamaCare baseline in 2024 assumed 18.9 million people would enroll in plans this year if the enhanced subsidies vanished. The budget gnomes have repeatedly underestimated ObamaCare enrollment and spending; they need to rework their models.
Again, this was an estimate of what would happen in a few months, and predictions were way off. I've become skeptical of all long-term economic forecasts.
That background brings me to oral argument in Trump v. Cook. There are legal arguments for and against Cook's removal, but economists have also chimed into this case. They claim that allowing the President to fire Cook for alleged misconduct could lead to a recession! Justice Barrett even asked about this risk:
JUSTICE BARRETT: General Sauer, can I ask you a question that's also related to the stay factors? Justice Sotomayor brought up the public interest here, and we have amicus briefs from economists who tell us that if Governor Cook is --if we grant you your stay, that it could trigger a recession. How should we think about the public interest in a case like this?
Solicitor General Sauer responded that the stock market actually went up after Cook was fired, despite predictions of doom.
GENERAL SAUER: Yeah. Two --two things to say about that. One is, if you look at what actually happened here, she was removed on August 25th and the stock market went up for the next three days. So we've already had a kind of natural experiment, so to speak, about whether or not the predictions of doom will really be implemented. Surely, that if investors are jittery or whatever the argument is, you would have seen that on August 25th, and you did not see that. In fact, you have the surprised
Justice Barrett said that the Court should not be in the business of predicting markets.
JUSTICE BARRETT: Well, I'll interrupt you there to say that I don't want to be in the business of predicting exactly what the market's going to do.
Yet, that is exactly the premise of Barrett's question.
GENERAL SAUER: I agree. And that's why I think the Court ought to consider all those amicus briefs and their sort of, you know, predictions of doom with a fairly jaundiced eye. What the Court has to do is weigh -essentially, you have those amicus briefs as a reflection of very elite opinion, elite opinion that what's happened here
There is a focus on "very elite." Indeed, nearly every economist on planet Earth favors absolute independence of the Federal Reserve. Talk about a liberal asymmetry! But those dispassionate economists are not the duly-elected leaders of our nation.
Since Heller was decided nearly two decades ago, there have been attempts to draw analogies between the First and Second Amendment. Of course, this transplantation was always problematic. First Amendment doctrine is, for the most part, not originalist. The cases are laden with balancing tests that have little concern for original meaning. The entire notion of tiers of scrutiny is judge-made law. Why corrupt this new originalist frontier by transplanting the tainted soil of the Warren Court? Well, it is familiar, and judges do what is familiar. Still, it was a surprise when Bruen simultaneously repudiated balancing tests and looked to the First Amendment cases as a model.
In Wolford v. Lopez, the Court continued its interest with the First Amendment to resolve a Second Amendment case. And Chief Justice Roberts, usually not one for doctrine, was leading the charge.
In this exchange, Roberts seemed to analogize carrying a weapon's on someone's property to walking to someone's doorstep to drop off pamphlets.
CHIEF JUSTICE ROBERTS: Is there, under our law, an invitation, for example, for people solicitating, for people who want to drop off pamphlets about a particular -
MR. BECK: Yes, Your Honor, up until --up to the doorknob or --you know, there is.
CHIEF JUSTICE ROBERTS: Even though it's private property?
MR. BECK: Yes, Your Honor.
CHIEF JUSTICE ROBERTS: A stranger can walk off the sidewalk and go up to the door?
MR. BECK: Yes, up to the door, Your Honor.
CHIEF JUSTICE ROBERTS: Thank you.
In the wake of the Dobbs leak, this issue has been on the minds of the Chief and the other Justices. Back in the day, it was patriotic to advertise a Supreme Court Justice's address, and organize "peaceful" vigils outside the house where the Justices' young children live. But Roberts did not push back on Beck, because I think he recognized that there is a First Amendment issue at play.
Sarah Harris, the Principal Deputy SG, made a similar point in an exchange with Justice Gorsuch:
MS. HARRIS: I think, in the First Amendment context, you would say no big deal, you are now going from a world where candidates can go door to door and --for a campaign speech, but now you have to have a big sign in your yard that says political speech welcome for someone to go in. Or, in the Second Amendment context, Hawaii's same reasoning would lead to a rule that it's fine to ban tenants from owning guns in self-defense unless the landlord in the contract expressly consents to doing so. And I really think the concept that this is just tweaking consent elides the burden that Hawaii is imposing here of presumptively banning open carry, banning public carry.
Justice Barrett, who had to explain to her kids why she needed a bulletproof vest, may see the issue differently.
I often write about the audition trap: the irrefutable claim that a person is behaving a certain way in an attempt to obtain a higher office. This charge is often made against me. I do not read the comments on this blog or social media mentions, but I am reliably informed that those who disagree with me frequently assume that the only reason I can write what I write is as part of some effort to get some other job. Many people who write me often include a similar preface: I am not like the commenters, and think you are writing in good faith. But for my critics, the truth is scarier: I actually believe what I believe. If I was actually trying to obtain higher office, I wouldn't do most of the things I do. I certainly would not have resigned from the leading conservative thinktank on a point of principle. But people will never believe me. So be it.
I alluded to this point in my critique of the New York Times's failed attempt to quantify the Trump judges:
There are more than 50 circuit appointees. Do you think all of them are auditioning? I would not deny that some might be, but the vast majority of the nominees have no credible shot at promotion. Indeed, a law professor recently wrote on a listserve that Judge Jerry Smith's dissent in the redistricting case was an attempt to curry favor with Trump. Judge Smith is nearly 80 years old. We need to exit this audition trap. You cannot simply dismiss an argument by saying the judge is auditioning. The truth may be that the judges actually believe what they are writing. For the left, that truth is too hard to process, so they rely on the "auditioning" fiction.
Yet, I acknowledge and have written that for some people, their current job is merely an audition for their next job. And what do we make of these auditioners? Well, the argument goes, they will say what they need to say to get the job, and once they are in the job, they will do what they believed all along. This temptation is especially apt in positions with secured tenure.
President Trump addressed this point in Davos at the same time that the Supreme Court was considering his termination of Federal Reserve Governor Lisa Cook. Around the 56:00 minute mark, he discusses how auditioners say one thing during the audition and do something else once the audition is successful.
I'll be announcing a new Fed chairman in the not too distant future. I think he'll do a very good job. See, I gave away some of it. He did give that away. So, we have something. You got something. But somebody that's very respected. They're all respected. They're They're all great. Everyone that I interviewed is great. Everyone could do, I think, a fantastic job. Problem is, they change once they get the job. They do. You know, they're saying everything I want to hear. And then they get the job, they're locked in for six years. They get the job and all of a sudden, let's raise rates a little bit. I call them, "Sir, We'd rather not talk about this." It's amazing how people change once they have the job, but it's too bad. Sort of disloyalty, but they got to do what they think is right. We have a terrible chairman right now. Jerome too late Powell. He's always too late. And he's very late with interest rates except before the election. He was just fine for the other side. So, we we're going to have somebody that's great and we hope he does the right job.
I can imagine that Trump has had similar buyer's remorse about his appointees to the executive and judicial branches. Indeed, a nominees will never be more conservative and aligned with the President than on the day they interview with the President. Once confirmed, the leftward retrogression is inevitable.
Still, I think Trump is wrong to describe this phenomenon as disloyalty. That presumes the candidates were ever loyal to Trump in the first place. They weren't. Auditioners are truly loyal to themselves. Many of the most prominent auditioners decided at some point it would be strategically advantageous to become conservative, and proceeded accordingly. They look in the mirror and think that they are the best, and the indeed only person who can do the job. It is no surprise then that they should follow their own judgment once in the position.
This ambition is a permanent feature of human nature. But as Madison recognized in Federalist No. 51, the only check on ambition is ambition. In this regard, the process by which presidential appointments are made, and confirmed by the Senate, may be the best way to achieve Madison's ideal. Critically, during this process, auditioners with ambition will try to knock out other auditioners with ambition. It then falls to the President to decide which is the best nominee.
[D]efendant's opening brief cites six cases which do not exist. Plaintiff identified these fabricated cases as possibly being the product of artificial intelligence (hereinafter AI), and moved for an order seeking, among other things, sanctions against defendant and defense counsel. Defendant claimed the nonexistent cases were citation or formatting errors that he would correct in his reply brief, and then opposed the motion for sanctions with more fake cases and interpretations for existing cases that are at best strenuously attenuated, and at worst entirely inapposite.
Defendant's subsequent reply brief acknowledged that his "citation of fictitious cases is a serious error" and that they are "problematic," but failed to offer any corrections or further explanation as previously stated. He then proceeded to include more fake cases and false legal propositions in two subsequent letters to this Court that requested judicial notice of a bankruptcy stay. In examining the propriety of defendant's previously filed papers, more nonexistent cases were discovered in a motion that granted affirmative relief to defendant.
Defense counsel reluctantly conceded during oral argument that he used AI in the preparation of his papers and, although he told the Court that he checked his papers, the filings themselves demonstrate otherwise. In total, defendant's five filings during this appeal include no less than 23 fabricated cases, as well as many other blatant misrepresentations of fact or law from actual cases….
[Defendant] has also misrepresented the holdings of several real cases as being dispositive in his favor—when they were not. It is axiomatic that submission of fabricated legal authorities is completely without merit in law and therefore constitutes frivolous conduct. It cannot be said that fabricated legal authorities constitute "existing law" so as to provide a nonfrivolous ground for extending, modifying or reversing existing law….
[D]uring oral argument defense counsel estimated that 90% of the citations he used were accurate, which, even if it were true, is simply unacceptable by any measure of candor to any court. Where we are most troubled is that more than half of the fake cases offered by defendant came after he was on notice of such issue, whereby his reliance on fabricated legal authorities grew more prolific as this appeal proceeded—despite it being apparent to him that such conduct lacked a legal basis. Rather than taking remedial measures or expressing remorse, defense counsel essentially doubled down during oral argument on his reliance of fake legal authorities as not "germane" to the appeal….
Neal Katyal and Justice Jackson were placed in the uncomfortable spot of having to explain why racist legislation to disarm the freedman was actually relevant.
One of the most bizarre aspects of modern Second Amendment litigation is how supporters of gun control are forced to favorably cite Jim Crow laws. In all other contexts, these sort of anti-canonical statutes would be untouchable. Yet, when it comes to guns, all the usual rules go out the window. In Wolford v. Lopez, one of the leading authorities for Hawaii's law is an 1865 Louisiana statute. Neal Katyal described it as a "dead ringer" for the Hawaii statute.
During the oral argument, Justice Gorsuch was incredulous that Hawaii was relying on this shameful precedent. He asked Wolford's counsel if it was appropriate to rely on such a law to inform the nation's traditions.
JUSTICE GORSUCH: Your friends on the other side in the Ninth Circuit relied on two statutes in particular. One was the 1771 New Jersey law that you were just discussing with Justice Kagan. But the other one that was left unmentioned was an 1865 Louisiana statute that was adopted immediately after the Civil War as part of an effort, it appears, to disarm black people. A Reconstruction governor later explained that this law, of course, was aimed at the freedmen. Do you think the black codes, as they're called, should inform this Court's decision-making when trying to discern what is this nation's traditions?
MR. BECK: I do not, Your Honor.
JUSTICE GORSUCH: Well, your friend on the other side says it should and that the 1865 statute is a "dead ringer" for this statute.
MR. BECK: The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don't see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.
Gorsuch had a similar question for Sarah Harris, the Principal Deputy SG:
JUSTICE GORSUCH: And then, lastly, there's been some discussion about the black codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they're a dead ringer. Thoughts?
MS. HARRIS: It is 2026 and it is somewhat astonishing that black codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like. Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The black codes were offered, as you mentioned, by states before their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.
Yet, Justice Jackson tried at great length to explain why the Black Code statute was relevant. First, Jackson tried to suggest that disregarding the Black codes undermines the Bruen test, which looks at all traditions.
JUSTICE JACKSON: Let me just ask you about the black codes. Justice Gorsuch raised it. And I guess what I'm wondering --your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruen test, that to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I --I think there might be something wrong with the test. So can you speak to that?
MR. BECK: There's nothing wrong with the Bruen test, Your Honor. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small -
Second, Jackson said that Beck's approach would ignore the lived experience of those who were subject to Black Codes.
JUSTICE JACKSON: To --to people other than the people in this small segment that you're talking about, who were a part of society, but I guess you're saying that for the purpose of this test, we're not going to consider what happened to them?
MR. BECK: No. What I'm saying is that the --the black codes dealt with a very --it wasn't a law of general applicability. It was designed to discriminate against --it was a racist law designed to iscriminate against African Americans, whereas, here, the law at issue here is a law that applies to everyone. We can't use a racist, discriminatory law to justify a modern-day law that applies to the general public, Your Honor.
That was not at all Beck's point. A blatantly unconstitutional law cannot form part of the tradition for purposes of Bruen.
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by the leading media lawyer Floyd Abrams (Cahill Gordon & Reindel LLP), who has argued over a dozen First Amendment cases before the Supreme Court:
As we approach the fiftieth anniversary of Buckley v. Valeo, I'm reminded of a comment made by Joel Gora, who argued the case for Senator Buckley and Senator McCarthy. He correctly observed that many academics have treated Buckley as a "stain."
This characterization is as unfortunate as it is wrong. For those of us who believe that political speech deserves the highest level of First Amendment protection, Buckley remains not a stain but a shield—one that has protected the fundamental right of Americans to influence their government through both speech and spending.
The decision has wobbled, certainly. It has been criticized from both the left and the right, with some believing it went too far in protecting speech and others convinced it didn't go far enough. But through five decades of assault, Buckley endures, and with good reason: at its heart lies a principle so fundamental to our democracy that even its critics struggle to refute it entirely.
