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Higher Education

Trump's Harmful and Unjust New Restrictions on Foreign Students

They are likely to damage the US economy and deny many people valuable educational opportunities for no good reason.

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Three diverse coed college students lay on the grass, looking at a book.
Pkchai | Dreamstime.com

The Trump administration recently adopted new, gratuitously restrictive, rules constraining foreign students at US universities. My Cato Institute colleague David Bier, a leading expert on immigration policy, has a helpful piece summarizing the policy changes, and their pernicious nature:

Previously, international students on F visas, exchange visitors on J visas, and foreign media on I visas were granted admission for their "duration of status"—that is, for as long as they were in status or following the rules of the visa programs. DHS's final rule replaces that with a fixed period of entry of no more than four years (for international students and exchange visitors). But it does far more than end open-ended admission. Littered throughout it is a set of unprecedented restrictions with no statutory basis.

  • Students can't change majors or transfer schools in year one—and graduate students can't ever. The rule's own summary states it plainly:

For F‑1 students changing educational objectives or transferring to an SEVP-certified school, requiring that the student complete his or her first academic year of a program of study at the school that initially issued his or her Form I‑20 or successor form, unless an exception is authorized by SEVP; Prohibiting F‑1 students at the graduate education level or above from changing educational objectives at any point during a program of study.

Undergrads get one year before this restriction lifts. Graduate students never get it lifted at all, absent a SEVP exception. Change your mind about your PhD topic in year four, and you're the same as someone violating status on day one.

  • You can't complete a second degree at the same level, or step down a level, ever. Also from the summary:

Requiring any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level as an F‑1 student and prohibiting a change to the same or a lower educational level while an F‑1 student.

Finish a master's and want a second master's in a different field? Illegal. Finish a PhD and want to pick up an associate's degree in something practical? Illegal.

  • DHS's real response to people worried about the need to double-major: plan ahead, or too bad. Commenters pointed out this would devastate students in interdisciplinary fields who need two degrees to do their work. DHS's answer:

this rule does not prevent students who need double majors to achieve their goals from planning ahead and enrolling in both at the same time. For example, nothing in this rule prevents someone from doing a J.D./M.B.A. program at one institution with one I‑20 indicating the program end date that accounts for the longer time it takes to complete the double major.

A J.D. and M.B.A. are not even examples of majors at all, as opposed to types of credentials, so whoever wrote this rule doesn't have the slightest idea what students are even doing in higher education. More to the point, though, many people arrive at a US university not already knowing they'll need to pursue a joint degree on day one. DHS's answer to that reality is: you should have known in advance.

As David explains, the new rule also makes it more difficult for foreign students to find jobs and stay in the US after graduation.

From an educational and economic point of view, the new rules make no sense. As David notes, some degrees take more than four years to complete, for various reasons, and there are often good reasons for students to change fields, add additional majors, and the like. The real purpose of all of this is just to reduce the number of foreign students.

That, in turn would, over time, do serious damage to the US economy, especially in combination with other anti-foreign student measures adopted by Trump. Johns Hopkins Prof. Michael Clemens - one of the world's leading immigration economists - recently published a valuable article outlining many of these harms:

For generations, students from around the world have fueled universities in the United States, their top destination by far. Those students don't just sustain a $43 billion export industry in higher education services per year. Many remain after graduation as a key source of high-skill science and engineering workers, and thus innovation and growth in the US economy.

That system is now crumbling. The White House has enacted a spate of policies to restrict and repel international students en masse….

These policies, if sustained, would constrict a key supply of science and engineering talent to the US economy, reducing productivity and slowing economic growth in the long run. Using imperfect but best-available estimates from the economics research literature, we project the loss produced by a sustained decline of one third in international student inflows. Over the course of a decade, real US GDP would be smaller than it would be otherwise—an annual loss, at current GDP, of between $240 billion and $481 billion. The annual loss would be comparable to erasing the entire economy of Wisconsin or South Carolina.

The one-third reduction is extrapolated from the effects of Trump policies adopted even before this latest rule.

Clemens' article outlines the basis for these estimates in detail, and also notes additional harms that they do not consider. For example, many US universities are significantly dependent on foreign-student tuition, which is often used to subsidize financial aid for US-citizen students.

The new policies are also layered on top of Trump's unconstitutional and harmful efforts to deport foreign students who engage in political speech the administration doesn't approve of, a policy which, among other flaws, is a menace to academic freedom.

In addition, the new policies will deny valuable educational and career opportunities to many thousands of would-be students. And for no better reason than that they were born to the wrong parents in the wrong place. Conservatives rightly condemn racial and ethnic preferences in college admissions as unjust and anti-meritocratic, because they judge applicants based on morally arbitrary circumstances ancestry over which people have no control. In previous writings (see here and here), I have outlined why immigration restrictions - including discrimination against foreign students - are unjust for similar reasons, but to a much greater extent, because the effects are much larger. The difference between going to lower-tier school instead of, say, Harvard (the effect of racial affirmative action) is not as great as that between being allowed to study in the US and being categorically excluded.

Tariffs

Trump's Pernicious Threat to Impose Tariffs on Canada in Response to Wildfires

The idea is simultaneously harmful and illegal.

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Fireman spraying brush while fire burns in the background.
Will Lester/ZUMA Press/Newscom

Much of the eastern United States has recently been affected by smoke originating from massive wildfires in Canada. It's a genuine problem. But Trump's threat to impose new tariffs on Canadian goods in response won't make the situation any better. If implemented, it would damage both the US and Canadian economies, and further poison relations between the two countries. And it has no chance of actually alleviating the wildfire problem. Furthermore, no law authorizes the president to impose tariffs in response to natural disasters like this one.

Trump claims the tariffs are justified because "[w]e are holding Canada responsible for the fact that they are not properly maintaining their Forests, and Brush therein, and the United States is being unnecessarily invaded by filthy, polluted, and unhealthy air." But, in reality, the fires are caused by a combination of lightning, weather patterns, and global warming. They cannot be fixed by improvement "forest management."

I suppose one can argue Canada is partly responsible for the fires because they contribute to global warming. But the same is true of the US, and on a much larger scale (because we have a much larger population and economy). In any event, higher tariffs aren't likely to somehow lead Canada to prevent the wildfires.

What new tariffs would do is increase prices for American consumers, and reduce the productivity of the many US industries that rely on Canadian imports as inputs in their production process. For example, a December 2025 study by the US Chamber of Commerce documents the great harm caused by Trump's earlier tariffs on Canadian aluminum.  Similarly, tariffs on Canadian lumber increase the cost of housing construction, thereby further exacerbating our housing crisis. The two countries' economies are highly integrated, and there are many sectors where we mutually benefit by purchasing goods that the other country can produce at higher quality and lower prices.

New tariffs will also, of course, cause pain and suffering in Canada. But that is both bad in itself, and likely to further damage  the US. It's better for us to have a prosperous and growing neighbor than the opposite. Among other things, a wealthier Canada is likely to purchase more US exports, produce more goods and services we might want to buy, and generate better investment opportunities.

In addition, a new wave of tariffs would further poison relations with Canada, which have already been seriously damaged by Trump's previous tariffs and his repeated threats to annex Canada and make it the 51st state. Gratuitously alienating our neighbor and vital ally isn't "Making American Great Again." It's making us weaker and more isolated at a time when we need to work with allies to counter adversaries like Russia and China.

I know many people in Canada, including a good many conservatives and libertarians traditionally highly sympathetic to the US. Thanks to Trump and his policies, many of them are now deeply alienated from us, or at least highly suspicious. And it's not just a my admittedly unrepresentative acquaintances who feel that way.  Polls of Canadian opinion confirm a massive growth in anger and distrust of the United States. Americans underestimate the dangers of ruining this relationship at our peril. We don't want to replace a friendly and accommodating neighbor with a hostile one.

Finally, it's worth noting that Trump does not have the legal authority to impose tariffs in response to wildfires. Under the Constitution, tariffs are a congressional power, not an executive one. The Supreme Court forcefully reaffirmed that principle when it invalidated Trump's IEEPA tariffs (in a case I helped litigate). And there is no statute authorizing the president to impose tariffs in response to wildfires or other similar natural disasters in a neighboring country.

Trump is currently planning to reimpose something like the IEEPA regime using Section 301 tariffs. That plan is itself illegal for reasons Peter Harrell and I have outlined in various writings (see here and here). In any event, as Peter details, Section 301 can only be used in response to "unjustifiable" or "unreasonable or discriminatory" trade practices by foreign governments. Wildfires are pretty obviously not a trade practice.

The same goes for Trump's efforts to impose massive new tariffs using Section 122 of the Trade Act of 1974 (recently struck down by the US Court of International Trade). Section 122 can only be used to counter "balance of payment deficits" and related problems. Wildfires pretty obviously don't qualify. Nor is there any other statute that provides for tariffs in such situations.

Trump's interpretation of the IEEPA statute would have allowed him to impose tariffs here, as well, since it would give the president the power to impose tariffs virtually anytime he wants, so long has he claims it is in response to a "national emergency" that amounts to an "unusual and extraordinary threat." But the courts rejected his position in large part precisely because it gave him such unlimited power.

Perhaps Administration lawyers will yet develop some novel legal theory to try to justify the imposition of tariffs here. But, if they do and Trump acts on it, hopefully courts will reject it.

Ultimately, this situation is yet another reminder that we should not give one man a blank check to impose tariffs whenever he feels like it. Allowing that undermines the constitutional separation of powers, causes great economic harm, damages our relations with allies, and menaces the rule of law.

 

 

 

Free Speech

Site Linking to Abortion-Pill-Selling Websites Likely Protected by First Amendment, Even in States That Generally Ban Abortions

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Mayday Health runs a website that provides various information about abortion pills. South Dakota law provides, in relevant part,

No person may knowingly dispense, distribute, sell, or advertise any of the following for purposes of an unlawful abortion pursuant to § 22-17-5.1:

[1] An article or thing designed, adapted, or intended for producing an abortion; or

[2] An article, instrument, substance, drug, medicine, or thing that is advertised or described in a manner calculated to lead another to use or apply it for producing an abortion.

A violation of this section is a Class 6 felony….

Any person [other than the pregnant female herself -EV] who administers to any person or who prescribes or procures for any person any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female is guilty of a Class 6 felony.

Today's longish decision by Judge Camela Theeler (D.S.D.) in Mayday Health v. Rhoden issued a preliminary injunction blocking the enforcement of this law against Mayday Health; a few excerpts:

[1.] The court observes that the law (as applied to speech) is a content-based speech restriction, and thus is unconstitutional unless it fits within an exception or passes strict scrutiny. The court held that the law didn't fit within the category of "commercial speech," which is entitled to less protection:

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Free Speech

"Are LLMs Stifling Political Speech? An Assessment of How AI Models Protect Free Expression"

A new report from Meta's Oversight Board.

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The report is here. . Note that the results were based on queries sent "from an IP address in Australia," so this didn't just reflect (for instance) an AI company choosing to apply Chinese law to requests that seem to come from China. The Executive Summary:

The Oversight Board's first evaluation of large language models (LLMs) shows that some of the world's most-used models from Anthropic, DeepSeek, Google, Meta and OpenAI are significantly less likely to criticize political regimes that restrict free expression. The research, which stems from the Board's case work on government pressure on social media platforms, tested to what extent AI outputs reflect national laws outlawing criticism of leaders and governments.

Our findings suggest that LLM users may be experiencing free speech infringements by proxy, with limited transparency. Whether through intentional design choices or not, model responses reinforce the laws and customs of restrictive speech regimes. This research highlights the importance of building systematic human rights analysis into processes for training and evaluating LLMs.

Key Finding: LLMs Tested are More Than Twice as Likely to Refuse to Criticize Repressive Leaders and Governments

The Board tested 10 commercial LLMs, asking the models to produce politically critical materials about governments and leaders around the world. Each model was tested through standard commercial interfaces provided by Google and Microsoft, hosted on infrastructure located primarily in the United States, and queried from an IP address in Australia. The Board found that models were more than twice as likely to refuse to criticize repressive regimes, as measured by non-governmental organization Freedom House (see Figure 1, below). Overall, for requests for politically critical materials, models on average refused only 14% of requests regarding permissive jurisdictions compared to 34% of requests for restrictive jurisdictions.

Figure 1. Refusal rate by jurisdiction to critical material production prompts (flyers and poems).

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Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Financial surveillance, impaired contracts, and games of gotcha.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Privately nondelegating horse puns.

  1. In 2020, the U.S. Postal Service made a number of changes that reduced service. New York, New Jersey, and Hawaii sue, alleging that the changes will impede voting by mail. The district court enjoins the changes. D.C. Circuit: No jurisdiction. Congress said you have to take these challenges to the Postal Regulatory Commission first.
  2. Rhode Island, like many states, limits a motor vehicle manufacturer's ability to establish a new dealership near one of its existing in-state dealerships. Unlike other states, Rhode Island law extends this limit to new dealerships established in neighboring states. First Circuit: That sort of extraterritorial regulation violates the Dormant Commerce Clause.
  3. Agents in Puerto Rico seize a man's phone via a search warrant for an iPhone 6s. There is bad stuff on the phone. Oof! Turns out the phone they searched is an iPhone 13. Agents: Good-faith exception applies. It was an iPhone linked to the same phone number. First Circuit: The 6s and 13 aren't even the same size, and the agents realized they had the wrong phone at the time. Motion to suppress affirmed. Read More

Helpful Judges

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A footnote from today's D.C. Circuit opinion by Judge Justin Walker in U.S. v. Littlejohn; the underlying issue was whether a district court judge acted improperly in asking a question of a government lawyer that may have been aimed at helping the government's case:

[Littlejohn] notes that the district court repeatedly pressed the Government about why it brought only one felony charge against him when far more charges were possible. But that is hardly evidence of a predetermined sentence. When the district court asked about the charging decision before the plea hearing, the district court was likely weighing the reasons for and against accepting the plea bargain (which is a judicial responsibility). Then, when the court asked about it again at sentencing, the court was likely giving the Government an "opportunity to make it clear to the public" why Littlejohn didn't face more charges.

[Footnote:] Littlejohn complains that at sentencing the district court said it was asking these questions "to help" the Government. But it's likely the court was only trying "to help" the Government inform the public about the reasons for the lenient charging decision in this high-profile case. In any event, judges are not required to ask only hostile questions at a sentencing hearing—or at an appellate argument, for that matter. See Oral Arg. Tr. at 7, Ransom v. FIA Card Services, N.A., 562 U.S. 61 (2011) (No. 09-907) (Justice Scalia: "I'm trying to help you."); Oral Arg. Tr. at 13, United States v. Tinklenberg, 563 U.S. 647 (2011) (No. 09-1498) (Justice Scalia: "I'm trying to help you."); Oral Arg. Tr. at 21, United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023) (Nos. 21-1326 & 22-111) (Justice Sotomayor: "I've never heard an attorney fighting people trying to help him."; Justice Gorsuch: "It happens all the time here."); Oral Arg. Tr. at 10, Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025) (No. 23-975) (Justice Sotomayor: "I was trying to help you."); Oral Arg. Tr. at 34, Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012) (No. 10-1016) (Justice Sotomayor: "I thought Justice Alito was trying to help you."; Justice Breyer: "He was."); Oral Arg. Tr. at 41, Martel v. Clair, 565 U.S. 648 (2012) (No. 10-1265) (Chief Justice Roberts: "No. I'm trying to help you."); Oral Arg. Tr. at 38, White v. Woodall, 572 U.S. 415 (2014) (No. 12-794) (Justice Scalia regarding Justice Breyer: "He's trying to help you, counsel.").

For more on the underlying case, see D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump's and Others' Tax Returns. Thanks to Andy Patterson for the pointer.

AI in Court

Judge Faults Federal Government Lawyer for Apparent AI Hallucination

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From Judge Hala Jarbou (W.D. Mich.) yesterday in Daghra v. Hinkley:

Petitioner, a United States Immigration and Customs Enforcement detainee, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. An immigration judge had granted Petitioner a bond of $35,000, but the bond order was stayed pending appeal to the Board of Immigration Appeals pursuant to 8 C.F.R. § 1003.19(i) (2025). Petitioner argued that the 90-day automatic stay provision in § 1003.19(i) violates the Fifth Amendment's Due Process Clause, and sought an order requiring the Government to allow him to post bond. While this lawsuit was pending, the automatic stay of Petitioner's bond order expired. The Government now represents that the bond order is back in effect and Petitioner will be released if he posts the $35,000 bond. Accordingly, the Court finds that the habeas petition is moot and dismisses it without prejudice.

There is one additional issue in this case that the Court must address. In the Government's response to the Court's initial order to show cause, it stated the following:

More recently, the Sixth Circuit has reiterated that § 1226(e) bars challenges that "ask the court to reweigh the evidence underlying a bond decision or second-guess the Immigration Judge's discretionary judgment." See Taylor v. Hott, 724 F. App'x 387, 392 (6th Cir. 2018) (district court lacked jurisdiction to review IJ's bond denial where petitioner challenged flight-risk determination) ….

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Campaigns/Elections

My New Boston Globe Article on Trump's Bogus Election Fraud Claims

It explains why Trump is wrong and how federalism can help counter his efforts to subvert the 2026 midterm elections.

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The Boston Globe just published my article [gift link here] on Trump's election fraud speech from last night. Here is an excerpt:

In a speech Thursday night, President Trump claimed there have been serious breaches of election security and repeated his assertions that the 2020 election was compromised. As in the past, these remarks are utterly indefensible. And they are likely part of an illegal effort to federalize control over the upcoming midterm elections, so as to tilt the results in his party's favor. Hopefully, America's courts and federal system will continue to stymie him.

Trump claimed in his speech that some 278,000 non-citizens illegally registered to vote . There is no real evidence to support this, and even he didn't claim proof there was any significant actual illegal non-citizen voting. Decades of efforts to find such evidence — including by the right-wing Heritage Foundation — have turned up no more than a few dozen cases, over a span of several decades…

These claims are intended to bolster Trump's long-standing assertions that the 2020 election was somehow "stolen" from him. Overwhelming evidence shows the contrary. In 2020-21, Trump and his political allies filed 64 court cases challenging the results in six key swing states. As detailed in "Lost, Not Stolen," a review of these cases conducted by prominent Republican lawyers, election law specialists, and former federal judges, none of these decisions found significant evidence of voter fraud…

If some combination of Democrats and foreign powers had managed to "steal" the 2020 election while Trump was in the White House, and avoid detection in the process, one wonders why they didn't do it again in 2024, when a Democratic president was in power and in control of the Justice Department and the intelligence community. The fact that no such thing happened then is yet further evidence that it didn't happen in 2020.

The real purpose of Trump's ongoing lies about the 2020 election and election security may be to bolster his efforts to "nationalize" control of the 2026 midterm elections, so that he can skew results in his party's favor…

Fortunately, Article 1, Section 4 of the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. No current federal law gives Trump the authority he seeks. Numerous federal courts — including in cases presided over by Republican-appointed judges — have rejected his attempts to change voter ID rules by executive order and take control of state voter rolls. Courts should similarly rule against any potential efforts to use federal law enforcement agencies or — worse still — troops, to seize control of polling sites and ballots…

America's decentralized system of election administration has downsides, as well as virtues. But, as leading election law scholar Richard L. Hasen notes, it provides valuable protection against "a president hell-bent, like Trump, on election subversion." Hasen, previously an advocate of election law centralization, adds that this has led him to reconsider.…

Free Speech

Pentagon Journalist Escort Requirement Can Continue Pending D.C. Circuit Decision

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From yesterday's decision in N.Y. Times Co. v. U.S. Dep't of Defense, by Judges Karen LeCraft Henderson and Patricia Millett, which stayed a lower court order that had blocked the policy:

[O]n the record before us, [the government defendants-Appellants] are likely to succeed on their argument that [the] generally applicable escort requirement does not constitute a "sufficiently adverse action to give rise to an actionable First Amendment claim" of retaliation. [Plaintiffs-Appellees] have not argued that the escort requirement is not, in fact, generally applicable and applied across the board to all reporters. Nor have they argued that the policy is not being implemented evenhandedly. Neither have they contended that the policy has a distinctively adverse impact on them or their news reporting ability that is different from the policy's effect on all other covered reporters.

In addition, neither Appellees nor the dissenting opinion cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on Appellees can, without more, constitute retaliation under the First Amendment. Finally, Appellees' claims that the escort requirement is unlawful for reasons other than retaliation have not been raised before us as a basis for denying the stay.

The court also set the case for expedited oral argument. Judge Bradley Garcia dissented:

In October 2025, the Department of Defense adopted a new, restrictive policy governing credentials for journalists at the Pentagon. The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction. Within days, the Department announced a new policy that, among other things, required credentialed reporters to be escorted at all times while on Pentagon grounds. The Times and Barnes moved to compel compliance, arguing that the escort requirement ran afoul of the district court's order. The district court granted that motion. This court—based on my vote and Judge Walker's—granted the government's request for a limited stay pending appeal because the district court's original injunction "did not address" the later-imposed escort requirement and "the district court did not hold that the escort requirement independently violates" the Constitution.

The district court has now assessed the lawfulness of the escort requirement. The Times and Barnes filed a separate lawsuit directly challenging the new policy. The district court preliminarily enjoined the policy's escort requirement after determining that "it was issued to retaliate against the plaintiffs for exercising their constitutional rights."

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Trans

Court Rejects Claim That Allowing Allegedly Biologically Male Student in Girls' Restroom Violates Equal Protection Clause and Title IX

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From F.F. v. Valley View Comm. Unit School Dist. 365U, decided Monday by Judge Sharon Johnson Coleman (N.D. Ill.):

Plaintiff is an 18-year-old female who was previously enrolled at Bolingbrook High School. On November 4, 2024, at around 10:00 a.m., Plaintiff entered a girls' multi-use restroom labeled "girls' bathroom." After using and exiting a stall, Plaintiff observed a transgender student, who she was familiar with, dressed in "male-typical clothing … with no visible indication of female identity," standing in close proximity to her stall. Plaintiff feared that the student could have seen her undergarments or her exposed body through small spaces on either side or under the stall door. While Plaintiff does not allege any facts indicating the student actually saw or tried to see her exposed body, Plaintiff claims to have been "triggered" and to have experienced "intense feelings of anxiety, discomfort, and shame" from the mere possibility of being exposed.

On November 6, 2024, Plaintiff described the incident to her father, Mr. Fisher. The following day, Mr. Fisher sent a text message to the School's principal, Dr. Pascavage, to report the incident and raise concerns about Plaintiff's privacy. Dr. Pascavage responded that the transgender female student had been granted access to the girls' restroom pursuant to an Individual Development Plan, or formal plan outlining the student's gender-identity accommodations. To address Plaintiff's privacy concerns, Dr. Pascavage offered Plaintiff access to single-use staff restrooms.

During an in-person meeting with Mr. Fisher on November 12, 2024, Dr. Pascavage further elaborated that the School followed Illinois Department of Human Rights ("IDHR") guidance, titled "Guidance on Protection of Students in Illinois: A Non-Regulatory Guidance Relating to Protection of Transgender, Nonbinary, and Gender Nonconforming Students." The 2021 IDHR publication provides guidelines on complying with the Illinois Human Rights Act, "in the context of a school setting, with specific focus on how the IHRA protects the rights of transgender, nonbinary, and gender nonconforming individuals." In relevant part, the publication states:

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Free Speech

D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump's and Others' Tax Returns

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From U.S. v. Littlejohn, decided today by D.C. Circuit Judge Justin Walker, joined by Judges Neomi Rao and Judith Rogers:

In 2017, Charles Littlejohn obtained a job as a consultant to the Internal Revenue Service so that he could steal and leak the tax returns of President Donald Trump. He says he "felt that the American people should have the opportunity to see the tax returns of the sitting president before they decided on how they were going to vote." … Two years into his elaborate scheme, in 2019, Littlejohn gave President Trump's tax return and return information to a reporter for the New York Times…. [J[ust weeks before the 2020 presidential election, the New York Times began publishing articles based on what Littlejohn had stolen.

That was, however, only one of Littlejohn's grand plans. He says he "also felt that taxpayers as a whole deserved to know just how easy it was for the wealthiest among us to avoid paying into our system." So he used his "skills to systematically violate the privacy of thousands of innocent people" by stealing the tax returns and return information of about 600 entities and about 7,600 of the wealthiest Americans. He then leaked what he stole to ProPublica, which used data regarding at least 152 of his victims in about 50 articles.

As a result of Littlejohn's crime, his victims lost business. They were disparaged countless times. And their families were physically threatened. See A 199–201 (letters on behalf of victims who described "great distress" to "me and my family"; "reputational damage"; "economic impact"; "patently false assertions about the tax payer's tax compliance"; personal "threat[s]" to "our family"; "disparage[ment] countless times"; "lost business"; "reputational damage"; putting "our family's safety" in "jeopard[y]"; "very real threats"; "mental, emotional, and reputational consequences").

To this day, ProPublica is sitting on the private, as-yet-unpublished data of other taxpayers stolen by Littlejohn. But those taxpayers continue to fear that ProPublica will publish their data in the future….

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Immigration

My New Jotwell Review of Anna Law's Book "Migration and the Origins of American Citizenship"

The book is an important new account of the early constitutional and political history of American migration policy.

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Oxford University Press.

Today, the Jotwell website (to which I am a regular contributor) published my review of Anna Law's important new book Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants.  Here is an excerpt:

Political scientist Anna O. Law is one of the leading experts on the history and development of American immigration policy…. Her new book builds on her previous scholarship and that of others to bring together three interlinked topics that are usually considered separately: the development of immigration law and policy in the early republic, policies on slavery and internal migration, and policy towards Native Americans.

Law makes the by-now familiar point that, during the first century of American history, power over international migration overwhelmingly resided in the hands of state governments, rather than the federal government. In a more novel and distinctive move, she links this to the desire of many Founding-era Americans and subsequent generations to preserve state authority over internal migration, slavery, and dealings with Native Americans.

Southern slave states sought to retain control over importation of slaves and in-migration of free Blacks—ensuring a steady supply of the former, while restricting the latter, lest they upset the system of racially based slavery. Some northern states also sought to keep out or at least restrict free Blacks, out of racism. Many states further tried to restrict entrance by "paupers"—people believed likely to become dependent on welfare and charity….

All of this helped lead to a Constitution that did not give the federal government much, if any, control over migration, at least in peacetime. States wanted to retain that control for themselves. As Law points out, the Constitution doesn't clearly assign power over migration to any level of government. But the historical evidence suggests the general understanding in the Founding era was that international and domestic migration were largely under state control.

One can put the point even more strongly: Given the extensive and detailed enumeration of other federal powers in the Constitution—including such relatively minor ones as "fix[ing] the standard of weights and measures" and establishing "post roads"—it would be extremely surprising if the Founders gave the federal government so major a power as that of immigration restriction without making it explicit….

Law concludes that federalism largely failed to enhance liberty when it comes to international and internal migration. She correctly emphasizes the many restrictionist aspects of state control, often motivated by racial or ethnic bigotry. She notes, also, that neighboring states sometimes imitated each other's restrictive policies rather than countering them.

Law is certainly right that state policy on both internal and international migration during the first century of American history was far from a paragon of virtue and inclusion. But other aspects of her account strongly suggest that leaving this policy area under state control was still likely better than federalization would have been.

Variation between states often worked to the advantage of migrants. As Law describes, ship owners and employers often arranged to land new immigrants in states with less restrictionist polices. From there, they could move on to other states—including those with tighter restrictions on landing. Moreover, as Law outlines in one of the more insightful and original parts of her account, the state of New York—which, in the nineteenth century as now, had the single biggest East Coast port—had very open policies, with few restrictions on migration. Immigrants and shipping lines took advantage of that….

Law also may somewhat overstate the extent to which racial and ethnic discrimination guided immigration policy. Undoubtedly, there was a great deal of that. But many of the Founders also took Enlightenment liberal ideology seriously, and recognized that it implied an open immigration policy.

In his General Orders to the Continental Army, issued at the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions…."  Jefferson, Madison, and others said similar things. This talk was backed by actual policy at the federal level, and in more liberal-minded state governments.

When it comes to non-white immigrants, as Law notes, the Naturalization Act of 1790, and succeeding legislation until after the Civil War, limited citizenship to whites. That was undoubtedly caused by a combination of racism and fear that an increasing population of Black immigrants would imperil racially based slavery. But this restriction did not prevent non-white migrants from coming to the US and living and working here….

In sum, leaving immigration policy largely to state governments likely led to substantially more open immigration than might otherwise have been the case, and the Founders' liberal Enlightenment ideals had some real impact. At the same time, Law is right to point to the many severe deviations from those ideals, especially at the state level and with respect to Blacks….

Law's new book is essential reading for anyone interested in the constitutional and political history of American migration policy.

Supreme Court

Justice Kagan Says Don't Call It the "Shadow Docket"

Justice Kagan tells Congress she prefers to call it the "emergency docket."

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Associate Justices Elena Kagan and Amy Coney Barrett testified before Congress this week.

Much of the press coverage and online commentary has focused on the justices' discussion of their need for greater security and increasing threats to the federal judiciary, with a particular focus on Justice Barrett's comments on her personal experience. Contrary to the claims of some "conservative" influencers, Justice Barrett did not say anything suggesting such threats--including the swatting attempt on her home--had affected her work or decision-making. She actually said the opposite, that all of the justices "continue to do their jobs without fear or favor."

In the House, the justices were asked about the Court's handling of requests for interim or emergency relief on the so-called "shadow docket." The exchanges here are interesting, not least because Justice Kagan said it is no longer appropriate to use the "shadow docket" label.

Here is an excerpt from the transcript.

REP. HOYER: Let me go to -- and I'm not asking you about the substance of decisions, but I am asking you. There has been a substantial increase in what I guess we call shadow decisions. Is that a budget-related or policy-related phenomenon?

BARRETT: Well, let's see. I think that litigants have long had the ability to seek interim relief from the court, but I think you are certainly right, Ranking Member Hoyer, that we have seen a big change in the volume and the nature of such requests.

The court is doing its best to adapt and respond. I think it is a policy question, not so much a budget one.

I don't know if you have additional thoughts.

KAGAN: I am sure there will be additional questions.

(LAUGHTER)

HOYER: Does that impact on the transparency, which you referred to not putting up fences so that people had access?

There are concerns, obviously, that these shadow dispositions impact adversely on the knowledge the public has about how the court makes its decisions and who is making what decisions. Do you want to comment on that?

KAGAN: Ranking Member Hoyer, there are definitely issues with respect to the emergency -- we call it the emergency docket. Some of us call it the interim docket. I -- it's a terminology nightmare. I call it the emergency docket. And there are definitely questions about how it is appropriate to use that docket, when it's appropriate to use that docket, the standards to be applied, the way those standards actually work out in individual cases.

And you see that in some of our decisions, because we are, in many, if not most of these cases, not unanimous. There will be a majority and a dissent. The reason I think it is probably not appropriate, at least not now, to call it the shadow docket, is because we have done, I think, a better job in the recent past of, where appropriate, and it's not always appropriate, but where appropriate, explaining ourselves, at least to a moderate degree.

I think if you had asked me this question a year ago, I might have said that there would be -- there were some cases, and, in fact I did say, I had said in some public events that there were some cases where we did so little explanation of what lay behind our order that lower courts had a great deal of difficulty trying to figure out what that order was.

Were we saying something about the merits of the case? Were we saying about -- something about who had standing to contest the merits? Were we saying something about appropriate remedies? Nobody knew.

I don't think that that's so much a problem anymore. I think that, as we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief, that we better recognize that at least sometimes there is a need for additional information.

And we have issued opinions, and sometimes majority and dissenting opinions accordingly.

Free Speech

Court Affirms Rejection of Allegedly Anti-Zionist Professors' Claims That University Should Have Stopped Jewish Professors from Filing Religious Discrimination Complaints Against Them

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From Lax v. CUNY, decided in 2024 by N.Y. trial court judge Gina Abadi, and just affirmed Wednesday in a short opinion by the N.Y. intermediate appellate court:

 Plaintiffs are observant Jewish professors at Kingsborough Community College (Kingsborough), which is part of CUNY [City University of New York]. Defendant Professional Staff Congress (the Union) is the labor union for the faculty. Defendant the New Caucus of the Professional Staff Congress (New Caucus) is a political party of the Union. [Defendants] Wetzel and Perea were professors at Kingsborough and members of the New Caucus.

On February 26, 2021, plaintiffs filed this action alleging … hostile work environment discrimination on the basis of religion[,] … retaliation [for making discrimination complaints], … [and] assault and false imprisonment.

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kingsborough Community College (PFC) and are also members of the New Caucus. Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kingsborough. Plaintiffs allege that Wetzel and Perea actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that the PFC denied entry to every observant Jewish applicant, including Lax; that the PFC and the New Caucus members lobbied against Lax and other observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members, including Lax; that the PFC and the New Caucus members wrote in a communist newspaper regarding their "struggle" against a "network of Zionists" among the faculty at Kingsborough, and made similar comments in a publicly distributed campus survey; that there were discussions between Wetzel and others that observant Jews were undesirable for PFC membership; that Perea engaged in a malicious and relentless campaign to get Goldstein fired because he was a Zionist; that an internal PFC email mentioned the need to "bring violence to the Zionists on campus"; that anti-Semitic flyers were distributed on the Kingsborough campus; that a portrait of Goldstein's father was defaced; that nails were found in the tires of cars belonging to Lax and Goldstein; and that the PFC members called for plaintiffs' removal from their jobs at Kingsborough.

[Defendants] Wetzel … and Perea[ cross-claimed, arguing, among other things,] that CUNY is a government entity directly subject to the First Amendment … and that, in addition, CUNY has promised to protect their academic freedom and freedom of speech in assertions made in its contract with them, in its faculty handbook, on its website, and elsewhere, on which they relied to their detriment. [Their cross-claim] further alleges that Wetzel and Perea have used their academic freedom and First Amendment rights to utter progressive political views and criticism of [plaintiff] Goldstein, which plaintiffs claimed were anti-Semitic. It also alleges that Wetzel and Perea's political criticism of Israel is not anti-Semitic, and that the complaint's specific assertions against them regarding their alleged actions of anti-Semitism are frivolous.

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Politics

Today in Supreme Court History: July 17, 1862

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7/17/1862:  Congress enacts the Confiscation Act, which empowers the government to seize the property of the rebels. The Supreme Court considered the constitutionality of that law in The Confiscation Cases (1873).

The Chase Court (1873)
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