Yesterday the Supreme Court had oral argument in United States v. Hemani, which presented the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent."
Several justices honed in on an important question: When Congress makes a categorical judgment about who can lawfully possess or carry firearms, how should courts review that judgment? Near the beginning of the opening argument by Hemani Counsel Erin Murphy, Chief Justice Roberts asked whether Hemani's position—that disarmament on account of his marijuana use violates the Second Amendment—embodied a "fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch." In other words, if Congress says marijuana users are dangerous, who is the judiciary to question that decision?
Two thoughts on this issue. First, applying Bruen's historical analysis, we ask what is the historical tradition at issue? Both sides agree that firearms can be banned from physically "dangerous" individuals. Accepting that principle resolves this case, without the Court having to decide what level of deference the legislative branch gets in defining categories of dangerous people. That is because (as several justices seem to acknowledge in their questioning) that is not what happened here. In enacting Section 922(g)(3), Congress did not come up with a list of drugs whose use renders the user "dangerous," thereby justifying disarmament. Rather, Congress simply incorporated wholesale the drug "schedules" prescribed under the Controlled Substances Act and said that any unlawful user of a scheduled drug can be disarmed.
While it may be perfectly fair to determine that users of some scheduled drugs are "dangerous"—PCP, methamphetamine, heroin, etc.—there are many drugs that are scheduled that don't seem to suggest anything of the sort. Adderall, for instance, which is commonly taken by students at exam time, or Ambien, which induces sleep, seem unlikely to point to someone who is physically dangerous with a firearm. That is because what "schedule" a drug is on is not actually related to dangerousness for Second Amendment purposes, and a determination that it should be scheduled at all in no way indicates dangerousness. In Second Amendment terms, the "why" that a drug is scheduled under the CSA is totally unrelated to the "why" that has historically justified disarmament.
Second, if the Court does wade into the issue (it seems premature to do so in Hemani specifically), the answer to the Chief Justice's question is: "No, it would be a judicial abdication for a court not to review a legislature's finding of 'dangerousness' when fundamental rights are at stake." The Supreme Court explained in Gonzales v. Carhart (2007) that, although it generally reviews congressional fact finding deferentially, the Court has "an independent constitutional duty to review factual findings where constitutional rights are at stake."
Where a question is one—as is the case in suits that seek to determine the scope of the Second Amendment's protections—that "can be settled finally only by [the Supreme] Court," the Court has not hesitated to reject congressional findings that it found inconsistent with the strictures of the Constitution, as it said in United States v. Morrison (2000). "Simply because Congress may conclude" something, the Court noted in United States v. Lopez (1995), "does not necessarily make it so." If Congress passes a law that disarms Ambien users because Ambien users are "dangerous," the Second Amendment compels the Court to ask whether that is really true—it cannot take Congress' word for it.
But that is not how Section 922(g)(3) works and the Court may well not get into the issue in deciding this case. The fallback position the government advanced at argument was that substances on the most serious "schedules," Schedule I and Schedule II drugs, may be an appropriate basis for disarmament, even if drugs on the lower schedules are not. Not only does that not improve matters—"dangerousness" is not a relevant consideration for any schedule—it causes considerable confusion in Hemani's case specifically. The government is currently considering downgrading marijuana, Hemani's drug of choice, to Schedule III, so that under its own reasoning, it would demote the drug from one that is "dangerous" to one that is not. That fact prompted Justice Gorsuch to ask in frustration, if the government's position is that dangerousness is the principle and it scales up the schedules under the CSA, then isn't this "an odd case to have chosen to test … [that] principle?" It would certainly seem so.
Whatever the outcome, no question exists that the previous over-expansive ATF regulation is dead. As I explained here, the regulation asserted that one is an unlawful user if the drug was used "in the past year." The U.S. brief in Hemani argued that one is an unlawful user "only if he engages in the habitual or regular use of a controlled substance," and never mentioned the ATF regulation. ATF has proposed an interim final rule stating: "A person who regularly uses a controlled substance over an extended period of time continuing into the present, without a lawful prescription or in a manner substantially different from that prescribed by a licensed physician, is an unlawful user of a controlled substance."
All the Trump Administration's arguments for denying birthright ctizenship to children of undocumented immigrants are at odds with the main purpose of the Citizenship Clause of the Fourteenth Amendment - granting citizenshp to freed slaves and their descendants.
Trump v. Barbara, the birthright citizenship case, is currently before the Supreme Court, and there is a vast array of amicus briefs, as well as the briefs of the parties. But one key issue has not gotten the attention it deserves: accepting the government's position would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment. For that reason alone, the Trump Administration should lose the case, especially from the standpoint of originalism.
Virtually all informed observers agree that the main purpose of the Citizenship Clause was to grant citizenship to newly freed slaves and their descendants, reversing the holding of the Supreme Court's infamous 1857 Dred Scott decision, which ruled that Blacks could never be citizens of the United States. Indeed, the Trump administration's Supreme Court brief in Trump v. Barbara says exactly that: "The Clause was adopted to confer citizenship on the newly freed slaves and their children." But all of the administration's arguments for denying birthright citizenship to children of undocumented immigrants and non-citizens present in the US on temporary visas would, if applied consistently, also have denied citizenship to numerous freed slaves and children thereof.
The Citizenship Clause states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The government's position depends on the claim that children of undocumented migrants and temporary visa holders are not "subject to the jurisdiction" of the US. But any interpretation of that phrase that excludes these groups would also have excluded large numbers of slaves, their children, and in some cases even free Blacks.
The simplest argument for the government's position is the idea that illegal entry somehow prevents undocumented migrants and their American-born children from being subject to US jurisdiction. This is extremely dubious, because undocumented migrants are undeniably subject to US law. But, if the argument is true, it would also have excluded large numbers of freed slaves and their descendants. As legal scholars Gabriel Chin and Paul Finkelman showed in an outstanding 2021 article, between the time Congress banned the international slave trade in 1808 and the abolition of slavery in 1865, many thousands of slaves were illegally brought into the US. These illegally imported slaves, in turn, likely had a substantial number of US-born children and grandchildren. Any interpretation of "subject to the jurisdiction" that bars children of illegal migrants from birthright citizenship would also have barred this large group of freed slaves.
Moreover, as Chin and Finkelman show in their article, the existence of this illegal slave trade was well-known to Congress, President Abraham Lincoln, and the framers of the Fourteenth Amendment. Congress repeatedly enacted legislation to try to curb it, and Lincoln raised the issue in multiple messages to Congress. If the original meaning of the Citizenship Clause excluded illegal entrants and their children, it also must have excluded large numbers of slaves and their children. Chin and Finkelman briefly discuss these points in their recently filed amicus brief, which however doesn't emphasize and elaborate on them as much as would be desirable.
Another standard argument for the administration's position is that illegal migrants, non-citizens on temporary visas, and their children lack the requisite exclusive "allegiance" to the United States, because they still owe allegiance to their countries of origin. If, as this theory assumes, people owe allegiance to the government of the country they are born in, it obviously applies to virtually all freed slaves, as well, even those brought into the US legally.
Africans captured and sold to slave traders owed "allegiance" to the rulers of their homelands just as much as illegal migrants or temporary visa-holders do. Indeed, the former likely had stronger ties of allegiance than the latter, since captured slaves - unlike migrants - had no desire to leave their homelands and live under the rule of the US government instead. Contrary to racist stereotypes, many West African rulers of the eighteenth and nineteenth centuries had considerably developed states. For example, throughout that period, until it was conquered by the French in 1894, Dahomey was a "monarchy with a highly organized central government." Edmund Abaka, Dahomey, in Encyclopedia of the Middle Passage 128 (Greenwood Press, Toyin Falola & Amanda Warnock eds. 2007). Like Dahomey, the Asante kingdom also had a governmental system similar in many respects to European states in the nineteenth century.
And even more primitive tribal rulers could still claim allegiance from their subjects, as the US government recognized in the case of Native American tribal governments. This is part of the reason why children born on Native American reservations run by such governments are among the few categories of people born in the United States who were not understood to be given birthright citizenship by the Citizenship clause, because such people really were exempt from the jurisdiction of US law on many issues, by virtue of the primacy of tribal sovereignty on reservation land.
The Trump administration and some of its amici (e.g. - Prof. Ilan Wurman) combine the "allegiance" argument with the idea that illegal migrants are not under US jurisdiction because they are not under the "protection" of the US government. Randy Barnett and Wurman have argued that birthright citizenship applies only to the children of people who have entered into a "social compact"and an "allegiance-for-protection" exchange with the US government.
But, as I pointed out in an earlier critique of the Barnett-Wurman argument, slaves obviously were not part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters. Indeed, illegal migrants and temporary visa holders actually get far more protection from the US government than slaves did. While undocumented immigrants are subject to deportation, at least US authorities still, to some extent, protect them against enslavement, forced labor, and assault. Temporary visa holders get still more protection, as they can seek protection from law enforcement without fear of getting deported.
When it came to slaves, by contrast, the federal government enacted policies like the Fugitive Slave Acts, intended to keep them from escaping bondage. And that bondage often included beatings, rape, and other horrific violence. If children of undocumented immigrants or temporary visa holders don't qualify for birthright citizenship because their parents weren't sufficiently under the "protection" of the US government, that goes double for freed slaves.
Some defenders of the administration argue that undocumented immigrants and temporary visa holders are not "subject to the jurisdiction" of the US because they are not subject to its "complete political jurisdiction," meaning they do not have the same rights and duties as citizens. This argument appears to have first been advanced by later-disgraced law Professor John Eastman, back in 2015 (Eastman is notorious for his involvement in Trump's scheme to overturn the results of the 2020 presidential election). The theory runs afoul of the main purpose of the Citizenship Clause for reasons I outlined in a 2024 article:
If the Citizenship Clause covers only children of people who have the full rights of citizens, that would undermine the central purpose of the Clause, which was to reverse Dred Scott's notorious holding that Black people – even those who were not slaves – could not be citizens of the United States. In his infamous opinion in Dred Scott, Chief Justice Roger Taney concluded that Black Americans could not be citizens in part precisely because they were denied various legal rights. As Taney pointed out, in most states free Blacks could not vote, could not serve on juries, and were barred from serving in the militia (including under the 1792 federal Militia Act, which limited militia service to white men). If such logic is applied to the Citizenship Clause, Congress or a state government could have prevented newly freed slaves and their children from becoming citizens simply by declaring that they were not entitled to vote, could not serve on juries, could not be members of the militia, and so on.
Note that even most antebellum free Blacks did not qualify for birthright citizenship under the "complete political jurisdiction theory," since many states denied them the right to vote, the right to serve on juries, and other rights and duties traditionally associated with full citizenship.
Finally, we have the so-called "domicile" argument, which claims that children of undocumented immigrants are not subject to US jurisdiction because their parents are not properly domiciled in the US. If "domicile" simply means living in the United States, then both slaves and illegal migrants obviously qualify. If it means living in the US legally, then undocumented migrants can be excluded. But the same goes for slaves brought in illegally. And, as noted above, there were many such illegally delivered slaves.
Moreover, to the extent that the Supreme Court has held that "domicile" matters for jurisdiction, it also requires that any legal change of domicile must be voluntary. For example, in a 1989 case involving a conflict between state and tribal jurisdiction over the adoption of Native American children, the Court ruled that , "[o]ne acquires a 'domicile of origin' at birth, and that domicile continues until a new one (a 'domicile of choice') is acquired." Nineteenth century jurists held similar views. For example, in the 1890 case of Penfield v. Chesapeake O. & S.W. R. Co., the Supreme Court held that "No length of residence, without the intention of remaining, constitutes domicile" in a case where state jurisdiction over a case turned on residency [emphasis added]. Most, if not all, slaves forcibly brought to the US obviously had no "intention of remaining," but would have preferred to be returned to their original homes. On this theory, undocumented migrants actually have a stronger claim to "domicile" than slaves did, since the former come voluntarily and and generally have every intention of remaining indefinitely.
In sum, either children of undocumented migrants and temporary visa-holders satisfy any relevant domicile requirement, or that requirement would exclude all or most slaves and their descendants, and therefore must be rejected. Either way, the government should not prevail based on the domicile theory.
There are many other reasons why the Trump Administration deserves to lose the birthright citizenship case, some of them outlined in an amicus brief by a cross-ideological group of constitutional law and immigration scholars, which I joined. Prof. Michael Ramsey, one of the other signers, is a prominent conservative originalist legal scholar, and author of perhaps the leading article on the original meaning of the Citizenship Clause. Prof. Ramsey updated his analysis in this recent article.
But the link to slavery provides a powerful additional reason for ruling against the administration's position. If accepting any of the arguments backing it would have required denying citizenship to large numbers of slaves and their descendants, that means those theories are at odds with the main objective of the Citizenship Clause and must be rejected for that reason alone.
Today's unsigned majority opinion in Mirabelli v. Bonta held that California policies that "prevent schools from telling them about their children's efforts to engage in gender transitioning at school unless the children consent to parental notification" and "require[] that schools use children's preferred names and pronouns regardless of their parents' wishes" violate parental rights.
Justice Kagan's dissent, joined by Justice Sotomayor, argues:
[A] contrast—this time, between this case and United States v. Skrmetti (2025)—is also striking. In Skrmetti, several parents challenged Tennessee's ban on gender-affirming care for minors. The suit raised claims grounded in both equal protection and substantive due process. As to the latter, the parents in Skrmetti, similarly to the parents here, asserted a right "to make decisions concerning medical care for their minor children." And in support of that right, the Skrmetti parents relied on the same [parental rights] precedents the Court does today …. But the Court, when deciding to grant certiorari in Skrmetti, limited its review to the equal protection issue: It would not even hear the parents out on their substantive due process claim.
So why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti, which the Court declined to review; an excerpt:
There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.
Washington v. Glucksberg (1997) puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….
Today's unsigned majority opinion in Mirabelli v. Bonta held that California policies that "prevent schools from telling them about their children's efforts to engage in gender transitioning at school unless the children consent to parental notification" and "require[] that schools use children's preferred names and pronouns regardless of their parents' wishes" violate parental rights, which are a facet of the "substantive due process" doctrine. It also held that the policies violate religious parents' Free Exercise Clause rights, but that would have only protected parents who have religious objections to the policies; the substantive due process argument protects all parents. (For more, see this post.)
Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, added this:
As the dissent observes, substantive due process is a controversial doctrine. Judges typically interpret express constitutional rights, such as the freedom of speech or religion. But substantive due process asks us to find unexpressed rights in a constitutional provision that guarantees only "process" before a person is deprived of life, liberty, or property. When rights are unstated, how do judges know what they are? The obvious risk is that judges will use their own values as a guide, thereby jeopardizing the People's right to self-governance.
To mitigate this risk, the Court has crafted a demanding test for recognizing unexpressed rights: They must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg (1997). Relevant here, the doctrine of substantive due process has long embraced a parent's right to raise her child, which includes the right to participate in significant decisions about her child's mental health. See Pierce v. Society of Sisters (1925); Meyer v. Nebraska (1923); Parham v. J.R. (1979)….
The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women's Health Organization (2022). But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects. Applying Glucksberg, Dobbs holds that Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992), were incorrectly decided because a right to abortion is not "'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Dobbs, 597 U. S., at 231. And because the Court concluded that the stare decisis factors counseled against retaining these cases, Dobbs overruled them. It does not follow from Dobbs that all our substantive due process cases conflict with Glucksberg, much less that stare decisis would counsel overruling any that do.
Today's opinion in Mirabelli v. Bonta involved, on the merits, California policies that "prevent schools from telling them about their children's efforts to engage in gender transitioning at school unless the children consent to parental notification" and "require[] that schools use children's preferred names and pronouns regardless of their parents' wishes."
But the procedure was unusual: The injunction had been issued by the District Court and appealed to the Ninth Circuit, which temporarily stayed (i.e., blocked) the injunction pending appeal. The Supreme Court was asked to vacate the stay, and thus reinstate the injunction, again pending appeal. That's the kind of procedure that happens on the Court's "shadow docket" or "emergency docket" or "interim relief docket." And the Justices had an interesting discussion about this. From the unsigned majority opinion:
We grant the application and vacate the stay with respect to the parents because this aspect of the stay is not "justified under the governing four-factor test."
Likelihood of success on the merits. We conclude that the parents … are likely to succeed on the merits of their Free Exercise Clause claim [and substantive due process claim]. [For details, see this post. -EV] …
Irreparable harm. The denial of plaintiffs' constitutional rights during the potentially protracted appellate process constitutes irreparable harm.
Balance of equities. Finally, the "equities do not justify depriving [the parents] of the District Court's judgment in their favor. Everyone agrees that children's safety is the overriding equity. And the injunction here promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children's lives. The injunction also permits the State to shield children from unfit parents by enforcing child-abuse laws and removing children from parental custody in appropriate cases. [The majority didn't expressly discuss the fourth factor, the public interest, but its discussion dealt with it implicitly. -EV] …
Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, concurred:
[T]he precedent recognizing [parental] rights controls our assessment of whether the parents are likely to succeed on the merits. The word "likely" is important, because it reflects that our assessment is preliminary. We consider the merits not to conclusively resolve them, but because they bear on the limited question before us: Are the parents entitled to the benefit of the judgment entered by the District Court while California tries to overturn that judgment on appeal? The Ninth Circuit—itself acting on an interim basis—said "no." We disagree. The parents must continue to litigate in the Ninth Circuit, and if necessary, this Court. But in the meantime, the injunction of California's policy—which, incidentally, was entered after a full merits process—remains in place.
[Plaintiff] parents object that [California] policies prevent schools from telling them about their children's efforts to engage in gender transitioning at school unless the children consent to parental notification. The parents also take issue with California's requirement that schools use children's preferred names and pronouns regardless of their parents' wishes….
[T]he [District Court] granted summary judgment for all plaintiffs and entered a permanent injunction in their favor. [See this post for more on that decision. -EV] The injunction prevents the schools from "misleading" parents about their children's gender presentation at school and their social transitioning efforts. It also requires the schools to follow parents' directions regarding their children's names and pronouns. And it compels defendants to include in state-created or approved instructional materials a notice of the rights protected by the injunction.
The Ninth Circuit granted defendants' motion to stay the injunction pending appeal. [See this post for more on that decision. -EV] … On the free exercise issue, it relied on a not-precedential Sixth Circuit decision and brushed aside Mahmoud v. Taylor (2025), as "a narrow decision focused on uniquely coercive 'curricular requirements.'" The Ninth Circuit expressed skepticism about the parents' and teachers' Fourteenth Amendment due process claim because it viewed those claims as seeking to expand the protection afforded by established precedent.
When the Ninth Circuit stayed the injunction, the parents and teachers filed this application seeking vacatur of the Ninth Circuit's stay pending appeal….
We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim. California's policies likely trigger strict scrutiny under that provision because they substantially interfere with the "right of parents to guide the religious development of their children." Mahmoud (citing Wisconsin v. Yoder (1972)). The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California's policies violate those beliefs and "impos[e] the kind of burden on religious exercise that Yoder found unacceptable." Indeed, the intrusion on parents' free exercise rights here—unconsented facilitation of a child's gender transition—is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud.
California's policies will likely not survive the strict scrutiny that Mahmoud demands. The State argues that its policies advance a compelling interest in student safety and privacy. But those policies cut out the primary protectors of children's best interests: their parents. See Troxel v. Granville (2000) (plurality opinion). California's policies also appear to fail the narrow-tailoring requirement. The State's interest in safety could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse. For these reasons, the parents who object to the California policies on free exercise grounds are likely to succeed on the merits.
The same is true for the subclass of parents who object to those policies on due process grounds. Under long-established precedent, parents—not the State—have primary authority with respect to "the upbringing and education of children." Pierce v. Society of Sisters (1925); accord, Meyer v. Nebraska (1923). The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Parham v. J.R. (1979). Gender dysphoria is a condition that has an important bearing on a child's mental health, but when a child exhibits symptoms of gender dysphoria at school, California's policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents' rights to direct the upbringing and education of their children….
Back in 2013, Justice Scalia gave a wide-ranging interview with New York Magazine. One of my favorite exchanges concerned which media Scalia consumes:
What's your media diet? Where do you get your news?
Well, we get newspapers in the morning.
"We" meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn't handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don't think I'm the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
Justice Barrett apparently has different reading habits. During oral argument in United States v. Hemani, she pointed to a recent article in the New York Times concerning the harms from marijuana:
And so I guess my concern is let's say that I think Congress could make a determination, maybe, I don't know, I mean, there was just an article in the New York Times about the dangers of marijuana, and, you know, maybe that's true.
I did a quick search of the briefs in Hemani, and I couldn't find any articles from the Times cited on this point. The most recent piece from the NYT Editorial Board on February 9 (after amicus briefs were due) was titled, It's Time for America to Admit That It Has a Marijuana Problem.
I would wager that Justice Barrett consumes news from the New York Times on her own. Even if Justice Barrett has her social media mentions screened (I am skeptical), she voluntarily reads a publication that is intent on influencing her--and not in a good way. Remember what Jodi Kantor of the New York Times said: "I just want them to know we're watching them."
For what it's worth, I subscribe to the New York Times, the Washington Post, the Wall Street Journal, the Washington Times, and several other outlets. I try to read each site daily so I know what everyone on all sides is saying.
In the "three buckets" picture of the structure of the federal government, a federal entity that is not part of Congress or part of the judiciary must inevitably be in the Executive Branch.
For several decades, we have been witnessing a Congress in long decline and a corresponding ascent of the President and the courts. I see this as a fundamental deformation of the Constitution—a deviation from its original and better design—and this deformation is the subject of my lecture today.
Congress has long been regarded as the keystone of the federal government. James Madison thought it self-evident that "[i]n republican government, the legislative authority necessarily predominates." Under the Constitution, only the Congress is given the power to enact laws, levy taxes, and appropriate monies for the government.
The President, by contrast, is given a short list of powers and duties, some rather inconsequential, such as the duty to receive ambassadors, presumably in a reception at the White House (or the like). Over time, the President's power has tended to wax during times of war and wane in times of peace. But at least in matters of domestic policy the President has been subordinate to Congress.
As for the third branch: The federal courts have always been small in number relative to state courts, and historically they have largely directed themselves to questions that state courts cannot effectively or appropriately decide.
Today, Congress passes relatively few laws, follows the President's lead on taxes, and stands by while the President reallocates appropriations without sanction. Meanwhile, the President issues a blizzard of Executive Orders, in the manner of an elected monarch. And the Supreme Court is expected to issue blockbuster decisions on a routine basis informing the country what it can and cannot do with respect to gun control, abortion, affirmative action, religious freedom, takings of property, and myriad other issues.
Prof. Merrill is giving the Hallows Lecture at Marquette tonight on this subject, and I'm delighted to report that he'll also be guest-blogging on it here this week. Here's the abstract of the lecture:
Why has Congress, the constitutional keystone of the federal government, become so ineffective, relative to the president and the federal judiciary? While many explanations have been offered, one important but unappreciated reason is legal ideas—not just widely discussed concepts such as the unitary executive and originalist interpretation of the Constitution but also, and perhaps even more importantly, unstated ideas that have taken hold without much explicit discussion or acknowledgment.
This lecture will identify and discuss three largely unquestioned ideas that have combined to deform our constitutional regime. Their result has been that the president wields immense power in the guise of issuing orders and binding regulations and the courts exercise great power in the guise of interpreting the Constitution and laws, while Congress stands largely out of the picture. While there is no magic incantation for restoring a proper constitutional balance, an important first step is to recognize the role that unstated ideas have played in the transformation, so that they can be unmasked and debated in the open.
Thomas W. Merrill is the Charles Evans Hughes Professor of Law at Columbia University. He is one of the nation's most widely respected and often-cited law professors, with an unusual range of expertise, including constitutional, administrative, environmental, and property law. His recent books include The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press 2022). Merrill is also an accomplished lawyer, serving as deputy solicitor general of the United States from 1987 to 1990, where he argued twelve cases before the Supreme Court, practicing law for a number of years at Sidley & Austin, and continuing to engage actively today in the profession beyond the academy.
This annual lecture remembers E. Harold Hallows, a Milwaukee lawyer and a faculty member at Marquette Law School from 1930 to 1958 and a justice of the Wisconsin Supreme Court from 1958 to 1974 (chief justice the last six years).
From Hodges v. Gloria, decided Thursday by the Ninth Circuit (Judges Consuelo Callahan and Lucy Koh, and Judge J. Campbell Barker (E.D. Tex.)), an interesting exchange:
Dennis Hodges, a correctional officer and religious pastor, challenges San Diego Mayor Gloria's veto of his reappointment as a voluntary member to the City's Police Advisory Board … as violating his First Amendment rights to free speech and free exercise of religion. The Mayor stated that he vetoed Hodges's reappointment because Hodges had made repeated public comments that he considered "transgenderism" to be a sin just like adultery and fornication….
The court held this as to the free speech claim:
[A] consistent line of cases running from Elrod v. Burns (1976) through Branti v. Finkel (1980) to Blair v. Bethel School District (9th Cir. 2010) and most recently to Lathus v. City of Huntington Beach (9th Cir. 2023) hold that an appointed volunteer may be dismissed for statements that might otherwise be protected by the First Amendment when "commonality of political purpose" is an appropriate requirement for the volunteer's services.
Here, the district court correctly concluded that under the San Diego Municipal Code, the Advisory Board is an extension of the Mayor, who appoints its members, and that commonality of political purpose with the Mayor is required for members of the Advisory Board, such that the Mayor may decline to reappoint a member based on his public comments.
Even if commonality of political purpose presented a closer question, our decisions in Blair and Lathus concerned the removal of board members from their existing positions. Hodges offers no authority extending the asserted First Amendment right to serve on an advisory committee to cover reappointment to a committee. He does not deny that under the Municipal Code, the Mayor has discretion to appoint or reappoint individuals without cause.
Hodges assertion that we should apply a weighted Pickering v. Board of Education (1968), balancing test was rejected in Lathus (citing Hobler v. Brueher (9th Cir. 2003) ("where the Branti exception applies the employee can be fired 'for purely political reasons' without any Pickering balancing.")). We are bound by that decision….
And as to the free exercise clause claim:
Hodges would have to show that even though the veto of his reappointment did not violate his free speech rights, it violated his free exercise rights because of his underlying religious beliefs. He offers no case law supporting such a proposition. Moreover, he does not explain how his religious motive for making public statements changes the court's evaluation of his claim; nor does he deny that the Mayor chose not to reappoint him because of his public statements. Accordingly, he has not shown that the district court abused its discretion in rejecting his free exercise claim.
Judge Barker concurred, suggesting that "Lathus's articulation of the exception's breadth may be in tension with other First Amendment jurisprudence":
Everyone makes mistakes, even experienced professionals; a good reminder for the rest of us to learn from those mistakes. The motion in State v. Stroup starts off well in its initial pages (no case law hallucinations), but is then followed by several pages of two other motions, which I don't think the lawyer was planning to file, and which appear to have been AI-generated: It begins with the "Below is concise motion language you can drop into …" language quoted above.
Griffen Smith (Missoulian) reported on the story, and included the prosecutor's motion to strike that filing, on the grounds that it violates a local rule (3(G)) requiring disclosure of the use of generative AI:
Sonya Shaykhoun ("Plaintiff") is a licensed New York attorney with 21 years of experience, including expertise in intellectual property licensing, proceeding pro se in this action…. On May 17, 2023, Plaintiff posted a "Tweet" on X.com regarding an unlicensed vendor in Riverside Park ….
Here's the Tweet, from the Complaint:
Back to the opinion:
The Tweet garnered nearly 7 million views and sparked significant engagement, both negative and positive. Plaintiff made $170.97 from the Tweet through X.com's monetization program from August 9, 2023 to May 27, 2024. Plaintiff thereafter decided to change her X account from public to private "to protect her safety," thereby halting any future earnings….
On May 18, 2023, The Daily Beast published an article written by news reporter AJ McDougall, entitled "Lawyer Roasted for Calling 911 on 'Unlicensed' Food Vendor in NYC Park" …. The Daily Beast Article partially embedded the Tweet but included a hyperlink to the full, original tweet and did not include the two photographs Plaintiff included in the original Tweet.
I have an opening for a research assistant at the Hoover Institution (Stanford) for a year starting June or thereabouts. This is a temporary position with a starting hourly rate of $23.59 (unfortunately, with no benefits, since it is classified as temporary). I'd be glad to have someone in the Stanford area who will come to the office in person, but I'd be open to someone working remotely as well.
The typical assignments will be reading cases and briefs, proofreading article drafts, finding and reviewing news articles and journal articles on various topics, cite-checking, tracking down court filings, investigating new technological developments (especially having to do with AI), and the like. My current RA graduated from Stanford last year and took the job for a gap year between college and law school. My sense is that she found the work interesting and of potential value for her future work in law school.
The start and end dates would ideally be June 1, 2026 to May 31, 2027 , but there is some flexibility on both ends. (Because of Stanford rules, I can't hire anyone for more than a year for this.) The job is limited to 980 hours until Dec. 16 or so and then 980 hours afterwards, so it's a titch less than full-time, especially if one starts June 1, but not by much.
If you know people who might find this interesting, please encourage them to apply here.
Over at The Dispatch, I have a new piece on the originalist case for birthright citizenship. President Donald Trump's executive order attempting to strip natural-born citizenship status from children born of undocumented aliens and temporary aliens is facing an uphill climb before the Supreme Court on April 1. The uncertainly about its fate is not whether the Court will strike down the executive order as unlawful but how many votes the White House might get from the justices. Will the loss be unanimous, or merely overwhelming? We'll know this summer.
Meanwhile, some scholars and activists have emerged to lend support to the administration's efforts. A small handful of scholars (including Trump favorite, John Eastman, and my own dissertation advisor, Rogers Smith) had developed a revisionist case on the history and constitutional theory of birthright citizenship many years ago. Since the executive order was issued, a small band of new advocates have joined that revisionist camp in defense of the administration's actions.
Because someone is wrong on the internet, I have been drawn back into debates that once occupied me in seminars in graduate school. The revisionist case is still wrong, and the conventional wisdom is still right. If one wants to defend the Trump executive order, one would be best served by arguing that the original meaning of the Fourteenth Amendment is not dispositive.
The original meaning of the "subject to the jurisdiction" clause of the Fourteenth Amendment is consistent with the principles of the centuries-old English and American common law that predated the adoption of that text. Children born of aliens within the borders of the United States and under American governing authority are natural-born American citizens. I have developed out the principle and logic of the ancient common-law rule in a recently published article, an amicus brief filed at the Supreme Court, and now in The Dispatch. I rather suspect that I'll be presenting additional evidence and arguments on this issue down the road.
The modern legal argument surrounding Trump's executive order turns on the meaning of the phrase "subject to the jurisdiction thereof" in the text of the 14th Amendment. The court last spoke on this issue at the end of the 19th century, declaring "the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms." The court then concluded that "subject to the jurisdiction thereof" was to be construed in light of the common law and American practice. It recognized three standard exceptions to the nativity rule: children born of foreign ambassadors, children born of alien enemies in hostile occupation, and children born as members of an Indian tribe that held itself apart as "an alien, though dependent, power."
. . . .
Historical revisionism is sometimes useful, but in this case it is simply wrong. [Lincoln's attorney general] Edward Bates pointed to the traditional rule and the traditional sources familiar to 19th century American lawyers in his opinion on citizenship early during the Civil War. James Kent, a New York jurist and one of the leading legal treatise writers of the early republic, had summarized the law simply as "all persons born within the jurisdiction of the United States" are native citizens. William Blackstone, the author of the treatise upon which Americans from the Revolution onward relied for their understanding of the English common law, likewise summarized, "Natural-born subjects are such as are born within the dominions of the crown of England." Blackstone restated this in more technical terms, explaining that "within the dominions" was synonymous with "within the ligeance" of the king. Being born within those circumstances created a mutual bond between king and subject, in which the subject owes the king allegiance and the king owes the subject protection. Once established, that bond was extraterritorial; a subject leaving the king's dominion still owed him allegiance and was still owed protection.
. . . . As Blackstone noted, "the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." Those children could not themselves be aliens, despite the status of their parents, because they were not "borne in a strange country under the obedience of a strange prince." Conversely, a statute was required in the United States, as it had been in England, to extend citizenship to children of Americans born abroad "in a strange country." By the operation of the common law and the Constitution alone, such children had been born outside the dominion, or the jurisdiction, and were thus aliens by birth regardless of the status of the parents.
With the Supreme Court set to hear oral argument on April 27th in United States v. Chatrie, the geofence warrant case, I'm pleased to be able to post The Carpenter Adjustment, which is Chapter 9 of my 2025 book, The Digital Fourth Amendment. In the chapter, I explain what I think Carpenter means, the moves it is making, and how I think courts should interpret it. You can read the chapter here.
Here's the chapter summary:
The chapter considers how courts should interpret Carpenter v. United States (2018), the Supreme Court's blockbuster ruling that cell-site location records are protected under the Fourth Amendment. Carpenter is the Supreme Court's equilibrium-adjustment for noncontent network information: it recognizes that some network metadata is new and that the translation from physical space to network environments should treat some metadata differently. The question is, Which Internet data qualifies? This chapter develops a three-part test to apply Carpenter to Internet information. It then applies the test to a few important types of Internet information, such as Internet protocol addresses, geofence warrants, trip information, and Google search terms.
Ideally one would read this chapter in the context of the entire book, but I think this 20-page chapter stands on its own relatively well.
