The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy
About The Volokh Conspiracy

Correcting an Obnoxious Mischaracterization

|

In the middle of an article that amounts to, among other things, a disgraceful apologia for the explosion in campus antisemitism, including violence, since October 7 (recharacterized as involving only commendable "Palestine solidarity") Professor Jonathan Feingold of BU Law School and Isaac Kamola of Trinity College write:

In this MAGA mythology, student anti-discrimination trainings, LGBTQ+ resource centers, fellowships supporting Black students, and diversity-focused initiatives are indistinguishable from--or more concerning than--the actual Nazis who chanted "Jews will not replace us" on the University of Virginia's campus in 2017.17

17 For one example of the assertion that contemporary diversity efforts are "perhaps more insidious" than white nationalist projects and antisemitic conspiracy theories, see David Bernstein, Three Bad Ideas About Race in America, 4 Am. J.L. & Liberty 121, 123 & n.9 (2024).

Here is what I actually wrote in the cited article.

The United States has made substantial progress toward achieving the goals of the civil rights movement. While American society is not there yet, it is much closer in 2024 than it was in 1954…

There are two ideological threats to further progress. The first, from the right, is a potential return to the notion of the United States as a "white man's" country. The potency of this threat is reflected in the increasingly popular "Great Replacement" theory. According to this theory, the powers-that-be are seeking to replace the United States' white population with members of minority groups. These purported usurpers are mostly drawn from post-1965 immigrants, including illegal immigrants, and their descendants.9 While this conspiracy theory is wrongheaded and dangerous, those who adopt it fortunately hold little sway in elite and academic circles.

The second ideological threat is various racialist theories adopted by academics associated with the ideological left. These theories have spread to become something close to mainstream in some progressive circles. There is no single accepted moniker for this ideology, but many associate it with "woke," "critical social justice," and "critical race" theories of race and race relations. This ideology is perhaps more insidious than its counterpoint on the right; it reflects views held by people who call themselves "anti-racists" and who hold a great deal more cultural sway, especially among the American elite and in the establishment, than do right-wing racists.

Whatever one calls the theories emanating from the left, their advocates share a rejection of the racial liberalism that underlay Brown and explicit pessimism about the future of race in the United States. These theories also implicitly adopt racial essentialism as a working assumption, despite acknowledging that race is in fact socially constructed. As we shall see, some who reject racial liberalism favor encouraging Americans, especially white Americans, to strongly identify with their race.

Now, that was all written in late 2023, and with the reelection of President Trump and VP Vance's open alliance with Groyper-light(?) Tucker Carlson and his friends, I'm not sure I would draw the same conclusions today about where the insidiousness lies.

That said, I didn't write anything like the supposed "assertion that contemporary diversity efforts are 'perhaps more insidious' than white nationalist projects and antisemitic conspiracy theories." In fact, I didn't say anything about "diversity efforts," at all, much less deem such efforts worse than "white nationalist projects."

Rather, I critiqued three particular views common on the racialist left:

  • Socioeconomic disparities among racial and ethnic groups should presumptively be attributed to present-day racism, racial hierarchy, or institutions serving the white majority, rather than to the many other cultural, historical, demographic, and economic factors that can produce group differences.
  • Racial groups are collective actors with shared interests.
  • White racial consciousness should be encouraged.

And if you wanted to stretch things a bit, and suggest that if I am critiquing an ideology I must be critiquing the products of that ideology, it at least should go without saying that diversity efforts are not necessarily a product of, and certainly not exclusively a product of, the ideologies noted above.

Indeed, many are not. To take the concrete examples that the authors raise, "LGBTQ+ resource centers" have no direct relationship to modern leftist racialist ideology, and fellowships for black students at predominately white colleges have existed since at least 1918, when Grinnell College sponsored them in cooperation with philanthropist Julius Rosenwald.

Academics should be careful about mischaracterizing their colleagues, perhaps especially people they disagree with, but the fault here lies also with the BU Law Review. Law reviews have a lot of disadvantages, but one advantage is supposed to be that they are supposed to check what authors say against the sources they cite. This doesn't protect the reading public from authors that rely on poor sources, but at least it's something, and the law review failed that basic task.

Free Trade

Our New Federal Circuit Amicus Brief in the Section 122 Tariff Case

The brief explains why the Section 122 tariffs are illegal and run afoul of the major questions and nondelegation doctrines.

|

NA

Today, the Cato Institute and I filed our amicus brief in the US Court of Appeals for the Federal Circuit, supporting the Liberty Justice Center and Oregon (leading a coalition of 24 states) cases against Trump's harmful and illegal Section 122 tariffs. Here is the summary from the Cato website:

In February 2026, the Supreme Court invalidated the massive tariffs that President Trump attempted to impose under the International Emergency Economic Powers Act (IEEPA). But that decision did not end Trump's efforts to unilaterally impose onerous tariffs. Now the President has invoked Section 122 of the Trade Act of 1974 to purportedly impose 10 percent tariffs on imports from almost all US trading partners.

Soon after these new tariffs were announced, two small businesses and a coalition of 24 state governments filed lawsuits in the US Court of International Trade (CIT) challenging their legality. In May, the CIT ruled that these new tariffs are illegal. Now the case has been appealed to the US Court of Appeals for the Federal Circuit.

Cato and Professor Ilya Somin, our B. Kenneth Simon Chair in Constitutional Studies, have filed an amicus brief supporting the CIT's decision; Somin previously served as co-counsel to the victorious plaintiffs in the IEEPA Supreme Court tariff case. We thank Daniel Wolff, Alexander Schaefer, and Joshua Claybourn of Crowell & Moring for assistance in drafting and filing the brief.

In our brief, we explain why this sweeping imposition of tariffs is just as illegal as the previous one was, and for many of the same reasons.

First, our brief explains why Section 122 simply cannot be used in the current circumstances. The statute only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or that create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." But these conditions are only possible under a fixed exchange rate system, such as the one the US formerly had under the gold standard. These conditions cannot and do not exist in a flexible exchange rate regime of the sort in place today.

Next, we explain why, if there is any ambiguity about whether Section 122 authorizes the massive tariffs imposed by the administration, the major questions doctrine requires this issue to be resolved against the government. The major questions doctrine requires Congress to "speak clearly" when it assigns to the executive "decisions of vast economic and political significance." The impact of the new Section 122 tariffs is as large or larger than many previous policies invalidated by the Supreme Court on major questions doctrine grounds. And the tariff power is not exempt from major questions scrutiny on the supposed ground that it is a "foreign affairs" power. The major questions doctrine also counts against giving the administration a blank check in determining whether the preconditions to invoke Section 122 exist.

Finally, if the court were to conclude that Section 122 does somehow grant the president the sweeping power he claims, it must rule that the law is an unconstitutional delegation of legislative power to the executive. Congress cannot give the president what would essentially be unlimited power to impose up to 15% tariffs on imports from any nation, especially since the administration's approach would allow the executive to circumvent the 150-day time limit simply by declaring that a new balance-of-payments crisis has arisen after it expires.

The Federal Circuit should affirm the decision of the Court of International Trade and declare the new round of tariffs to be illegal.

I wrote about the Court of International Trade decision against the Section 122 tariffs here, and previously wrote about why these tariffs are illegal here. Trump has also tried to use Section 301 of the Trade Act of 1974 to impose massive illegal tariffs against numerous trading partners. Litigation challenging them is also ongoing.

UPDATE: A bipartisan and cross-ideological group of prominent economists also filed a notable amicus brief in the Section 122 case today. See here.

Free Speech

Journal of Free Speech Law: "Speaking Collectively: The First Amendment, the Public Sector, and the Right to Bargain and Strike," by Kate Andrias

Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.

|

The article is here; the Introduction:

The First Amendment, as interpreted by the federal courts, provides government workers a right to associate in unions but no right to bargain collectively or to strike. Indeed, it is a crime for employees of the federal government and of many states to participate in a strike or even to join an organization that asserts the right to strike against the government. In some states, public sector workers are also prohibited from engaging in collective bargaining. States can discipline and fire workers who seek to bargain collectively about their working conditions or who, along with their coworkers, withdraw their labor in protest of their conditions.

Yet, this interpretation sits uneasily with the text of the First Amendment, its purposes, and the Supreme Court's First Amendment doctrine in other contexts. The amendment protects "the freedom of speech, … [and] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Court has found "a corresponding right to associate with others," including "in pursuit of … political, social, [and] economic … ends." And the primary purpose of the First Amendment, the Court has held, is to advance democratic self-governance.

How is it that the Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment's ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers' ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through workers' association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union objectors, the Court has recognized that public sector collective bargaining is closely intertwined with politics and governance. Yet, with virtually no analysis, the Supreme Court and numerous lower courts have dismissed arguments for First Amendment protection of public sector bargaining and strikes.

Read More

Free Speech

Scary Spice off the Hook in Florida

|

From today's decision by Judge Darrin Gayles (S.D. Fla.) in Belafonte v. Brown:

This case arises out of abuse allegations made by Defendant Melanie J. Brown ("Ms. Brown"), singer from the famed music group "Spice Girls," about her former husband, Plaintiff Stephen Belafonte ("Mr. Belafonte"), a well-known producer and talent manager. Ms. Brown is a resident of the United Kingdom, although she does some work in the United States. Mr. Belafonte is a Florida resident. The former couple has one daughter together, M.B., who resides with Mr. Belafonte in Florida.

Mr. Belafonte and Ms. Brown began dating in 2006 and were married from June 2007 until August 2018. Mr. Belafonte alleges that, following their divorce, Ms. Brown made 41 defamatory and false statements against him, including that he abused her during their relationship. According to Mr. Belafonte, Ms. Brown made the statements in her memoir, Brutally Honest, in her Instagram posts, and in public appearances. {As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff's Complaint as true.}

In Brutally Honest, originally published in 2018, Ms. Brown wrote that she knew "what it's like to be beaten down … punched, humiliated and isolated" and that she "was exhausted … by seven years of what felt … like constant emotional abuse, mind games, degradation, threats and sexual exploitation." Ms. Brown wrote that when she met Mr. Belafonte, she "had a house and a loft apartment in Los Angeles and a good career" and when she left him, she "had less than $1,000 in the bank." Mr. Belafonte alleges that Ms. Brown's statements and implications about him were factually inaccurate and demonstrably false. Around December 2022, Ms. Brown discovered that Malu Trevejo ("Ms. Trevejo"), a Miami-based recording artist previously managed by Mr. Belafonte, was suing Mr. Belafonte for alleged financial abuse. Afterward, Ms. Brown shared TMZ posts discussing Ms. Trevejo's case, which also contained pictures of Mr. Belafonte and Ms. Trevejo on her Instagram stories. Ms. Brown overlaid the posts with supportive messages including, "[t]his man MUST be stopped[,] "@malutrevejo your story is my story and I'm STILL living threw [sic] it[,]" and "@malutrevejo standing up for ALL the women he exploits and STILL abuses, that's me included let's stand strong together and stop his #abuse[.]" {The Court only provides a sample of the 41 defamatory statements alleged in the Second Amended Complaint.}

In January 2023, Ms. Brown embarked on a publicity tour in support of the release of the new edition of Brutally Honest, which was published in 2024. The new edition contains the original book's information and additional material. In support of her book, Ms. Brown appeared on popular U.S. television shows including, LIVE with Kelly and Ryan, the Tamron Hall Show, and CNBC. During these broadcasts, Ms. Brown repeated her abuse allegations about Mr. Belafonte. For example, during a January 18, 2023 appearance on LIVE with Kelly and Ryan, Ms. Brown stated, "put aside … the physical abuse, the coercive control, the financial control, I was left just in bits and pieces." On March 26, 2024, while appearing on the Tamron Hall Show, Ms. Brown said, "I was not only abused on different levels, but also financially abused[.]" On August 30, 2024, in an interview with CNBC Conversation, Ms. Brown stated, "I've been abused on every single level."

The question at this stage is whether Brown is subject to the jurisdiction of a court in Florida, and the court said no:

Read More

Tariffs

Trump Expands Illegal Section 338 Tariffs Against Canadian Imports - and Bans Some Entirely

The move further escalates this harmful and illegal trade war with a vital ally.

|

President Donald Trump rips a paper in half, with the U.S. flag on one side and the Canadian flag on the other.
Illustration: Midjourney

Yesterday, Donald Trump further expanded his illegal Section 338 tariffs against Canadian imports and banned importation of some Canadian products entirely. The pretext for the move is Canada's predictable imposition of counter-tariffs in response to Trump's initial Section 338 moves. Georgetown University trade policy expert Peter Harrell has a helpful summary of the new restrictions Twitter/X:

1. Trump signed a variety of proclamations this evening retaliating against Canada's retaliation against Trump's initial Section 338 tariffs, now that the Canadian retaliatory tariffs have come into force. Trump's action includes outright bans on a handful for products as well as modifications of the 50% tariff list to reduce the impact on certain U.S. industries while adding new products to the tariff list to avoid an overall reduction in U.S. tariffs.

2. The bans: In a spate of bad news for American aficionados of Canadian booze, Trump has banned import of Canadian beer, wine, and distilled spirits, effective Sept. 29. He also banned whey and molasses, and motorcycles. (This last item presumably includes the three wheel "Can-Am" made by a subsidiary of Bombardier, the airplane manufacturer Trump has been targeting on social media).

3. Section 338 authorizes the President to ban imports if, following the imposition of Section 338 tariffs, the President finds as "a fact that any foreign country has not only discriminated against the commerce of the United States….but has, after the issuance of a [tariff action], maintained or increased its said discriminations against the commerce of the United States…" While Trump appears to be the first President to impose tariffs under Section 338 (since Congress passed it in 1930), the language of 338 does seem to authorize the import bans *if/assuming the underlying Section 338 tariff actions are lawful.* (As I have written elsewhere, I think there are good legal arguments against the underlying Section 338 tariff actions, but so far, no one has brought a suit).

4. Trump also modified the products impacted by the original 50% Section 338 tariffs to remove certain products where the tariffs had proved economically painful to the U.S., such as salt, cement, toilet paper, and fishing rod parts, while adding other products, such as various paper products, metals, motorboats, and cheeses. (This highlights that while the Administration does seem committed to the trade war with Canada, it is monitoring potential adverse economic consequences). The tariff modifications are effective Sept. 15.

As Peter notes, the legality of these new actions largely depends on the legality of the original Section 338 tariffs against Canada. And for reasons I summarized in a previous post, those original tariffs are illegal for multiple reasons, both because Section 338 itself has been superseded by later laws, and because the Trump tariffs against Canada don't meet the requirements of Section 338 itself. For an extensive discussion of the latter issue, see this excellent guest post  by Peter Harrell and Jennifer Hillman.

Last night's expansion of the Section 338 tariffs and imposition of unprecedented categorical bans on some imports may help strengthen the legal case against Trump's actions, by underscoring the vast scope of the authority he is claiming. This, in turn, strengthens the potential argument that these tariffs run afoul of the "major questions" and nondelegation doctrines, which restrict executive branch claims to sweeping delegated authority, and played a key role in the Supreme Court's ruling against Trump's earlier IEEPA tariffs.

Like the earlier Section 338 tariffs, this expansion will harm the US economy, raise prices for consumers, undermine the separation of powers, and further poison relations with a key ally. Other than that, it's a great idea!

UPDATE: Reason's Eric Boehm has a helpful overview of the expanded Section 338 trade restrictions here.

Free Speech

Sound of da Harassment Prosecution

Defendant's playing "the KRS-One song entitled 'Sound of da Police' at a high and disruptive volume from her vehicle while simultaneously directing offensive, suggestive, and threatening remarks toward the complainant near the complainant's home" "may reasonably be interpreted as intended to alarm, annoy, threaten, or harass."

|

From N.Y. (Town of Patterson) Justice Court judge Michael Caruso in People v. Lando, decided in April:

This prosecution … [is for] Harassment in the Second Degree in violation of Penal Law § 240.26(3), which is a violation [i.e., a petty offense punishable by no more than 15 days in jail -EV].

The complainant alleges, based upon personal knowledge, that on May 30, 2025, at approximately 5:30 p.m., Defendant stopped her vehicle in front of the complainant's driveway and played music at an excessive volume, causing annoyance and alarm. The complainant further alleges that the music included the phrase "it's the sound of the police," and that this conduct, as a whole, was undertaken in response to the complainant's prior report to law enforcement concerning Defendant's alleged excessive noise. According to the information, Defendant then backed up her vehicle and shouted to the complainant, "Why don't you call them [the police] for me being too loud." …

The supporting deposition alleges that on May 29, 2025, an individual identified as "Frank" drove past the complainant's residence and shouted vulgar and offensive language, including "Fucking faggot!" It further alleges that, later that same day, the same individual parked his vehicle in the roadway, thereby obstructing the complainant's wife from operating her vehicle, while staring at her and her daughter.

The supporting deposition further alleges that on May 30, 2025, the same individual again drove past the complainant's residence, shouting additional vulgar and offensive remarks, including "Gay fuck," directed at the complainant. It is also alleged that Defendant engaged in a course of conduct over a time period, including parking her vehicle conspicuously near the complainant's residence for extended periods with the windows down while playing loud music, specifically the song "Sound of da Police" by KRS-One, and operating her vehicle at excessive speeds along the roadway….

The court denied defendant's motion to dismiss the prosecution. It concluded that defendant's alleged conduct could qualify as second-degree harassment, defined as "engag[ing] in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." And the court concluded that the defendant wasn't protected by the First Amendment:

Read More

A Strange Sorting Feature On The Supreme Court's Docket

The order from the Justice is listed before the reply briefs.

|

I've noticed a quirk on the Supreme Court's docket. Often, an order from a Justice will be entered before the notation for reply briefs, even though the reply briefs were filed before the order.

Such is the case with Hoskins v. Von Glahn, which concerned Missouri's congressional maps.

The reply briefs were filed in the early hours of Tuesday, September 8. Then, around 6:00 in the evening, Circuit Justice Kavanaugh denied the order in chambers. Yet, on the docket, Kavanaugh's order appears before the reply briefs.

If you were to just look at this docket, you might think that the reply briefs were filed after the Circuit Justice order, which would make no sense.

I'm not sure why they are sorted like this. Perhaps the Justice's order always takes precedence in a given day?

Will It Matter That ABA Council Repealed The DEI Standard?

Law schools will still voluntarily follow the standard, and the Department of Education will still remove the ABA's accrediting authority

|

ABA Standard 206 should have never been adopted. Law school deans rushed it through the process in the wake of George Floyd's death. There was no evidence this standard was necessary or would actually improve race relations. Now, barely six years later, the ABA Council has repealed the standard during an emergency meeting.

What was the rationale for repealing the standard? The Council chair said nothing about the emptiness of Standard 206. Instead the sole reason offered was survival:

"The council believes that national accreditation of law schools is in the best interests of law students, the legal profession and the public, and we can best serve in this role with continued recognition by state supreme courts and the Department of Education," said Melissa Hart, the council's chair, in a statement. "Repealing Standard 206 was necessary to preserve recognition by a growing number of state courts, as well as the department."

The vote was 10-6, with one abstention (a real profile in courage).

Will this action matter? I doubt it. Law schools will still voluntarily comply with the ABA's former Standard through various DEI initiatives. And I doubt the Education Department will care much that this rule was repealed at the barrel of a gun. Nothing stops the ABA from reimposing the same of substantially similar rule in three years.

If only the ABA had listened while there was still a chance. The end is nearer.

Free Speech

Journal of Free Speech Law: "Permission to Speak Freely: An Introduction," by Sam Lebovic

Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.

|

The article is here; the Introduction:

In our polarized, paranoid politics, the speech of public employees has produced political controversies across multiple fronts. The culture wars that have entangled the nation's classrooms directly implicate the speech rights of educators. The war over the regulatory and administrative state directly implicates the rights and political activity of civil servants. Labor conflict within the public sector directly implicates the speech rights of both unions and union members. And the speech acts of public employees—tweeting a political opinion, blowing the whistle on official misconduct, or challenging a policy decision—easily become sites of political controversy, conspiracy theorization, and partisan conflict.

Each of these domains and developments has been the subject of deep debate in many fields of academic inquiry. But they have not been treated as instances of a broader problem: how a modern, bureaucratized democracy should manage the speech of its government employees. The issues are complex, requiring the balancing of competing democratic values: transparency versus autonomy; delegation versus supervision; objectivity versus diversity; tolerance of debate and disagreement versus the need to reach some form of functional consensus for collective governance to continue. They require parsing the intersection of First Amendment law, administrative law, labor law, democratic theory, and the brute science of American political contestation. It is no surprise that the law, philosophy, and politics of public employee speech are fraught and unsettled.

Read More

Donald Trump Hasn't Violated Twenty-Second Amendment

Magistrate Judge rejects plaintiff's theory that, because President Trump has claimed he was the rightful winner in 2020, he was therefore ineligible in 2024.

|

From today's Findings and Recommendation by Magistrate Judge Jeremy Peterson in Wilson v. Trump:

Plaintiff's sole claim is that defendant has violated the Twenty-Second Amendment. This amendment states that "[n]o person shall be elected to the office of the President more than twice."

As I previously stated in recommending that plaintiff's motion for a TRO be denied, "Trump was elected President in 2016 and 2024. In 2020, Joe Biden was elected President." Defendant states as much in his motion to dismiss.

Plaintiff's only argument in opposition is that because defendant has claimed that he "won the 2020 election," then defendant was elected President in 2020. However, as defendant acknowledges, he has made "public statements expressing disagreement with, criticism of, [and] skepticism about the 2020 election." Such statements do not support the finding that defendant was elected President in 2020. On the contrary, Joe Biden was elected in 2020 and served that presidential term.

Elections

Trump's Executive Order on Mail-in Ballots is an Assault on Federalism and Separation of Powers

It seeks to usurp state and congressional power over election administration.

|

NA

President Donald Trump is trying to force states to severely curtail mail voting for the fall election by requiring the US Postal Service to refuse to deliver mail ballots unless states meet various onerous requirements. This plan is an affront to both federalism and the separation of powers. The Constitution grants state governments default authority over election administration, subject to override by Congress, when it comes to procedural rules for federal elections. Trump is seeking to usurp these powers.

Numerous state governments and private organizations challenged Trump's executive order in court. The Supreme Court overturned an initial district court injunction blocking the policy, ruling - on procedural grounds - that the plaintiff states had filed their case prematurely (before the US Postal Service had issued a rule implementing Trump's order). While the Supreme Court's reasoning was dubious, it also - for reasons pointed out by Georgetown law Prof. Steve Vladeck - had little effect. Even before the Court had issued its decision, USPS did issue a final rule, and federal district court Judge Indira Talwani issued a new ruling blocking the order, soon thereafter. The Trump Administration has asked the Supreme Court to block the new order. The Justices would do well to say "no" to Trump.

The Elections Clause of the Constitution gives states primary authority over "The Times, Places and Manner of holding Elections for Senators and Representatives," subject to Congress' power to modify these rules by legislation. As Judge Talwani points out, "The Constitution does not grant the President any specific powers over elections." And, as she explains in detail later in her opinion, no federal statute gives the president the power to use the Postal Service to massively restructure state mail-in ballot rules. USPS does have authority to make rules necessary for the delivery of mail. But there is no power to use that as leverage to force changes in state election laws.

Judge Talwani further points out that the sweeping power claimed by Trump here runs afoul of the "major questions doctrine," which requires Congress to speak clearly when delegating authority over major political and economic issues to the executive:

The Supreme Court has made clear that, where "the Government claim[s] broad, expansive power on an uncertain statutory basis[,]" a reviewing court may rely on the general principle that Congress does not delegate "'highly consequential power' through ambiguous language." Learning Resources v. Trump, 607 U.S. 229, 242–43 (2026) (plurality opinion) (quoting West Virginia v. EPA, 597 U.S. 697, 723–24 (2022)). Few of Congress's powers are more consequential than its supervisory authority to regulate elections, because voting is "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

As I have previously explained, the Learning Resources tariff case cited by Judge Talwani (which I helped litigate) builds on previous "major questions" precedent.

The power to use USPS to restructure mail voting is pretty clearly a major one. Eight states allow all elections to be held entirely by mail, and others do with respect to many categories of voters. As Judge Talwani outlines in detail, the administration's new rules requiring states to use special envelope and ballot designs approved by USPS and to input all voters' information into a USPS-run portal, would severely disrupt election administration. They may well be impossible to implement in time to mail out ballots for the upcoming November elections (many states have already printed ballots, and are in the process of sending them out). All told, many millions of votes are likely to be be affected. Moreover, if this order is upheld, the same reasoning could be used to impose even more sweeping changes to mail-in voting in the future.

Trump claims the plan is needed to combat voter fraud. But there is no evidence of large-scale fraud in mail-in voting, or even that fraud in this type of voting is more common than with in-person voting. Trump's claims of fraud are likely part of his more general campaign to cast doubt on election results that go against him and the GOP, and to justify his attempts at illegal interference with elections. And, as my Cato Institute colleague Walter Olson points out, Trump has admitted that part of his motivation for attacking mail-in voting is to reduce Democratic turnout and bolster Republicans' election chances. In recent years, Democratic voters have been more likely to vote by mail than Republican ones - ironically, in large part because of Trump's own bogus claims that mail voting is somehow prone to fraud.

There is good reason for the constitutional allocation of power over elections, which largely excludes the president. No one person should have broad authority over election administration, because such power can easily be abused for partisan ends. This consideration also bolsters the rule for giving states primary responsibility over election administration, thus making it more difficult for the majority party in Congress to skew election rules in its favor, nationwide. In order to do so, they at least have to enact specific legislation, which can often be difficult.

Ironically, in recent decades liberal Democrats were primarily the ones who sought to expand federal control over elections, hoping that doing so would make the system more efficient and expand access to voting. Prominent election law scholar Rick Hasen - long a leading advocate of election law centralization - recently indicated that Trump's abuses have led him to rethink that position. I myself long had a more or less neutral view on this issue, believing that decentralized federalism has much less value in this field than in most others. Trump has led me to rethink my views, as well.

There are still plausible arguments for increased federal control over elections. For example, one can argue that Congress should improve election administration in states notorious for taking too long to count ballots. But any such shift must be made as the Constitution requires: through specific legislation enacted by Congress. It cannot be left up to the whims of any one person, including the president.

O.J. Simpson and Lindsay Clancy

|

On June 12, 1994, Nicole Brown Simpson and Ron Goldman were murdered. Five days later, O.J. Simpson took the LAPD on a low-speed car chase in a Ford Bronco. At the time, I was almost ten years old. All I remember about the initial crime was that the car chase coincided with the NBA Finals Game. The New York Knicks were playing against the Houston Rockets. I remember asking my parents who O.J. Simpson was. I had never heard of O.J. Simpson the football player, though I knew his character from the classic Naked Gun trilogy. (Don't even get me started on the sacrilegious remake.)

Yet, over the next year, everyone in America--even kids--became familiar with the trial. I remember hearing about Judge Lance Ito, Johnnie Cochrane, Marcia Clark, and Kato Kaelin. Years later, when I first heard of the Cato Institute, I thought it had something to do with O.J. Conversely, I learned about Kim Kardashian long before I knew who Robert Kardashian was.

The verdict was handed down on October 3, 1995. I remember the moment very clearly. I was in my 6th Grade Social Studies class, and our teacher, Mr. Segalowitz  announced the verdict in class. (I presume he had heard it on the radio.) It seemed obvious to eleven-year old Josh that the jury got it wrong, but I knew nothing about the law to even say why.

Needless to say, views on the O.J. Simpson verdict split sharply across racial lines. I found an old CNN poll with these numbers:

Regardless of the verdict, most whites believe Simpson was guilty of murder; most African-Americans say he was innocent. Two-thirds of all African-Americans think that there was a conspiracy to frame Simpson for the murders; six in 10 whites don't believe in such a conspiracy.

And both groups suspect that racial issues continue to tint the other group's view of the case. Sixty percent of all whites believe that blacks who think Simpson is innocent hold that view mostly because of Simpson's race. Among African-Americans, 58 percent think that whites who maintain Simpson is guilty feel that way mostly based on Simpson's race.

Another CNN poll asked if the jury did the right thing: 88% of blacks said yes while 59% of whites said no.

Another poll from the Washington Post offered similar numbers:

The survey found that America remains divided sharply along racial lines over the Simpson verdicts. Eight out of 10 blacks interviewed said they agreed with the decision, including 66 percent who expressed strong approval of the verdicts. But 55 percent of all whites interviewed said they disapproved of the jury's decision, including 40 percent who said they strongly disapproved.

Blacks and whites also differed in their perceptions of whether, regardless of the verdict, Simpson actually killed his ex-wife, Nicole Brown Simpson, and her friend, Ronald L. Goldman. Seven in 10 blacks expressed confidence that Simpson did not kill the pair -- and an identical proportion of whites said he probably did.

Overall, the survey suggests that in the court of public opinion, the jury is perhaps hopelessly deadlocked: Eight in 10 blacks say justice was done in the Simpson case -- and two out of three whites disagree.

Three decades later, I'm not sure the views of the O.J. trial have changed very much. This Family Guy clip sums things up:

Read More

How Letting a Young Child Go for a Walk Can Become a Criminal Offense

One can debate the wisdom of individual parenting decisions without believing they should be criminalized.

|

Some readers may have seen Lenore Skenazy's Reason article about how local authorities in Williamsburg, Virginia prosecuted Karyann Parkinson because she decided to let her five-year-old son walk by himself to collect goose feathers by a pond in a gated community. There is more to the story, but not anything that makes the government's actions seem any more reasonable.

I was at Ms. Parkinson's trial. She is a former student and neighbor. On this basis The Free Press asked for my thoughts on her prosecution and conviction. My article begins:

On a sunny day in June, Karyann Parkinson made a fateful choice that could affect her life for years to come: She let her 5-year-old son, Sam, walk alone to a neighborhood pond to collect goose feathers.

Nothing happened to Sam, at least not physically. But for her choice, Parkinson was charged with contributing to the delinquency of a minor, a first-degree misdemeanor in Virginia. In August, she was convicted by a local judge after a bench trial in the Williamsburg Juvenile & Domestic Relations District Court and given a six-month suspended jail sentence.

Knowing Parkinson—a then-neighbor and former student—and having attended the trial, it seems she was punished less for making a debatable parenting choice and more for refusing to come to heel when questioned about her decision. It's not so much that she let Sam collect goose feathers so much as that she did not genuflect to the proper authorities. That makes the case no less of an outrage. Parkinson has found herself in every parents' nightmare—hence why it made national news. So how, exactly, can a mother be given a suspended jail sentence for simply letting her son go for a walk?

My article concludes:

Parenting involves myriad difficult choices, not the least of which is determining when each child is capable of taking independent steps. Here there is a risk of allowing too much as well as of allowing too little. If a parent is too permissive, they risk seeing their child coming into danger. If a parent is not permissive enough, on the other hand, they risk stunting a child's development, including of their fortitude and resilience. Failure to allow and encourage greater independence at an earlier age no doubt contributes to the rise of anxiety and other mood disorders, particularly among children of middle- and upper-class families. Finding the right balance necessarily involves some degree of trial and error, as it is impossible to know whether, with a given child, a particular decision was overprotective or not protective enough until after the fact. On top of that, parents will weigh the balance differently, both for themselves as well as for children with varying capabilities.

Parents understandably agonize over such choices, acutely aware of the consequence of a wrong decision. This is enough for them to worry about. They should not have to worry about government officials second-guessing their choices or threatening criminal charges if a given cop or prosecutor determines a given choice was too permissive. One can conclude Parkinson was too permissive with Sam without thinking her decision was criminal.

Parkinson has appealed the judgment against her. And under Virginia law, she is entitled to a jury. A lone local district court judge was convinced debatable parenting choices could be subject to criminal sanction. We will see if a jury of Parkinson's peers agree.

En Banc Fifth Circuit Rejects Claims that Jackson, MS Water Crisis Violated Constitutional Rights

The Court rebuffs this effort to claims the Fourteenth Amendment protects positive rights.

|

Last Friday, the en banc U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a lawsuit filed by residents of Jackson, Mississippi, claiming that the city violated their constitutional rights by allowing the city's drinking water to become contaminated by lead and by falsely claiming the water remained safe to drink. By a 10-5 vote, the full court concluded in Sterling v. City of Jackson that there are no clearly established rights to clean drinking water or to accurate information from public officials under the Fourteenth Amendment.

Judge Englehardt wrote for the majority. His opinion begins:

For decades, the Supreme Court has cautioned lower courts to "exercise the utmost care whenever we are asked to break new ground" in the realm of substantive due process. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 240 (2022) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Yet Plaintiffs, residential subscribers to the municipally supplied water service in Jackson, Mississippi, seek recognition of two new constitutional rights lacking any foundation in the history and tradition of our Nation—the right to be free from exposure to contaminated water and the right to accurate information from public officials. The Due Process Clause cannot, for the first time today, provide redress for Plaintiffs' alleged injuries, absent any historical basis for doing so.

Because Plaintiffs' injuries are not constitutionally cognizable, the district court's dismissal of their 42 U.S.C. § 1983 claims is AFFIRMED. The Constitution does not provide redress for every governmental wrongdoing. Rather, the remedy for Plaintiffs' injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies. And Plaintiffs have not been left to go at it alone. The State of Mississippi and federal government have worked for years, and continue today, to improve the City of Jackson's drinking water quality through regulations, investigations, and compliance plans. These already-established-and-undertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.

The court readily acknowledged that this decision is in conflict with cases from the U.S. Court of Appeals for the Sixth Circuit, such as Guertin v. Michigan (6th Cir. 2019), but was unpersuaded by the Sixth Circuit panel's analysis in that case. From FN 5 of Sterling:

In Guertin v. Michigan, 912 F.3d 907, 920–21 (6th Cir. 2019), the Sixth Circuit held that plaintiffs plausibly alleged that public officials' actions during the Flint Water Crisis violated plaintiffs' right to bodily integrity. We are not bound, nor persuaded, by Guertin. The Sixth Circuit surveyed bodily-integrity precedent and found the right "indispensable," a "first among equals," with an "impressive constitutional pedigree." Guertin, 912 F.3d at 918–19 (internal quotation marks and citation omitted). We do not disagree that the right to bodily integrity is an important right. It is because the right to autonomy over one's person is so fundamental to our liberty that we are reluctant to weaken the right by applying it to conduct that would not have violated the Constitution when the Fourteenth Amendment was adopted. Guertin does not persuade us that Defendants' conduct resulting in Plaintiffs' exposure to contaminated water implicates the right to bodily integrity.

The split between Sterling and Guertin (and another Sixth Circuit case, Mitchell v. City of Benton Harbor from 2025), would seem to create an opportunity for Supreme Court review. On the other hand, it is difficult to see the Supreme Court being any more sympathetic to the plaintiffs' claims here than was the Fifth Circuit.

Judge Haynes dissented, joined by four other judges, largely on the grounds that it is premature to dismiss the plaintiffs' claims. In this posture, Judge Haynes argued, the plaintiffs should be at least entitled to pursue discovery given the plausibility of their claims.

More

Recent Volokh Posts

1

Correcting an Obnoxious Mischaracterization

2

No Bail Release for Tate Brothers, Detained While Extradition Matter Is Pending

3

Our New Federal Circuit Amicus Brief in the Section 122 Tariff Case

4

Journal of Free Speech Law: "Speaking Collectively: The First Amendment, the Public Sector, and the Right to Bargain and Strike," by Kate Andrias

5

Scary Spice off the Hook in Florida

6

Trump Expands Illegal Section 338 Tariffs Against Canadian Imports - and Bans Some Entirely

7

Judge Recommends Fining Delivery Nurse for Vulgar TikTok Video "Wish[ing] a Gruesome Birth Injury on the White House Press Secretary, Karoline Leavitt, While She Was Pregnant"

8

Sound of da Harassment Prosecution

9

Today in Supreme Court History: September 9, 1806

10

Open Thread

Reason's July 4 Special!

For America's 250th, Get 2 Years of Reason for $17.76

Celebrate your independence with a subscription to Reason magazine, your most trusted source of honest, insightful news and analysis.

Subscribe to Reason