A short excerpt from today's long opinion by Judge Arianna Freeman, joined by Judge Cheryl Ann Krause, in Qatanani v. Attorney General:
The Supreme Court has long recognized that the admission and exclusion of noncitizens is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." But in that endeavor, both political branches have particular roles to play.
On the one hand, the Executive has authority to enforce the immigration laws passed by Congress and to exercise the discretion Congress delegates to it. On the other hand, "the formulation of [immigration] policies is entrusted exclusively to Congress." Indeed, there is "no conceivable subject" over which the "legislative power of Congress [is] more complete" than the admission and exclusion of noncitizens. In this balance, it is the Judiciary's exclusive province to resolve separation-of-powers questions. So where an administrative agency purports by regulation to evade procedures mandated by Congress in the Immigration and Nationality Act ("INA"), it is incumbent upon us to intervene. We do so here.
In 1996, Mohammad M. Qatanani was admitted to the United States on a work visa. In 1999, he applied under 8 U.S.C. § 1255(a) to adjust his immigration status to that of a Lawful Permanent Resident ("LPR"). After lengthy proceedings regarding Qatanani's application, an Immigration Judge ("IJ") twice made fact findings and credibility determinations in Qatanani's favor and granted his application to adjust to LPR status. The IJ issued those orders in 2008 and 2020, respectively.
In a recent Just Security article, NYU law Prof. Samuel Estreicher and attorney Andrew Babbitt criticize the May 28 Court of International Trade ruling against Trump's IEEPA tariffs, in VOS Selections, Inc. v. Trump, a case brought by the Liberty Justice Center and myself, on behalf of five small businesses harmed by the tariffs. The case is now on appeal before the US Court of Appeals for the Federal Circuit.
Estreicher and Babbitt (EB) actually agree with us and the court that the tariffs are illegal! They just don't like much of the CIT's reasoning, and would prefer a ruling based on nondelegation doctrine. In this respect, they are similar to some previous critics of the ruling who support the result, but object to the reasoning, most notably John Yoo. He takes the exact opposite position: that CIT should have relied on the statutory text, rather than nondelegation and major questions doctrine (see my response to Yoo here).
EB overlook the fact that the CIT ruling did in fact rely, in part on nondelegation. In addition, the other grounds for the court's decision are much stronger than they realize.
EB agree with us that Trump's interpretation of IEEPA grants the president virtually unlimited power to impose tariffs, and also agree that such boundless delegation violates constitutional constraints on delegation of legislative power to the executive. They chide the CIT for supposedly avoiding this constitutional issue. But CIT did not avoid it! The court's decision specifically states that "any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional." It clearly relied on this point as an additional reason to rule against the administration.
The CIT also relied on the closely related major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." EB complain that MQD may not apply here, because it is not clear that it applies to presidential actions, as opposed to those of administrative agencies. But there is no good reason to exempt the president from MQD scrutiny, and three federal circuit courts have ruled that way. This point is further reinforced by the Supreme Court's increasing embrace of "unitary executive" theory, under which the president is entitled to near-total control over executive branch subordinates, thus making distinctions between them illusory. For more on this point, see our appellate brief in the case (pp. 51-53).
EB also note that MQD applies with greater force when an assertion of executive power is unprecedented. But, as they acknowledge, no previous president has ever used IEEPA to impose tariffs at all, much less on a scale large enough to start the biggest trade war since the Great Depression. It is true, as they emphasize, that President Nixon used IEEPA's predecessor statute, the Trading with the Enemy Act (TWEA), to enact more limited tariffs, and this was upheld by the predecessor court to Federal Circuit in United States v. Yoshida International Inc. (1975). But the Yoshida court specifically stated it was not endorsing unlimited tariff authority. It emphasized that the Nixon tariffs were linked to the preexisting tariff schedule set by Congress, and that "[t]he declaration of a national emergency is not a talisman enabling the President to rewrite the tariff schedules." It even noted that to "sanction the exercise of an unlimited [executive] power" to impose tariffs "would be to strike a blow to our Constitution."
Thus, Yoshida actually refused to interpret TWEA as endorsing the kind of unlimited tariff authority Trump asserts under IEEPA. Moreover, we cannot assume that the even the more limited tariff authority Yoshida allowed continues under IEEPA, merely because the latter statute used wording similar to TWEA. Congress wanted IEEPA to be more limited than TWEA, and specifically emphasized it could only be used to address an "emergency" that amounts to a "unusual and extraordinary threat…. to the national security, foreign policy, or economy of the United States" (concepts that were supposed to be narrowly defined and not a "normal" state of affairs). Trade deficits - the rationale for the Liberation Day tariffs at issue in our case - are neither an emergency, nor extraordinary, nor unusual, nor a threat (for more on these points see the excellent amicus brief in our case, filed by a cross-ideological group of leading economists).
Finally, it is worth emphasizing that IEEPA doesn't actually authorize tariffs at all. The statute does not even mention the word "tariff" or any synonym such as "duty" or "impost." All it allows is the power to "regulate" certain international economic transactions. Regulation and taxation are historically distinct powers, separately listed in the Constitution. The CIT decision deliberately chose not to address this issue. But in the Learning Resources case, decided a day later, Judge Rudolph Contreras of the US District Court for the District of Columbia (DDC) did address this question and correctly ruled IEEPA doesn't allow tariffs.
EB argue that Judge Contreras got this issue wrong, but they have no good reason for that claim, other than just relying on the Yoshida precedent (which itself offers provides little analysis justifying its conflation of taxation and regulation). If "regulate" inherently implies a power to impose taxes or tariffs, that would render the constitutional grant of power to Congress to "lay and collect… Duties, Imposts and Excises" superfluous, since the Constitution also gives Congress the power to "regulate" international commerce. Moreover, it would mean all of the many statutes that give some federal agency a power to "regulate" an activity also give it the power to impose taxes, which would be a massive expansion of executive branch taxation authority.
In addition, as Judge Contreras points out, this interpretation of IEEPA would render it unconstitutional, because the language of the statute applies to regulation of exports, as well as imports:
IEEPA provides that the President may "regulate . . . importation or exportation." 50 U.S.C. § 1702(a)(1)(B). The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 ("No Tax or Duty shall be laid on Articles exported from any State."). If the term "regulate" were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012).
Given these realities, there is every reason to confine Yoshida's reasoning to the narrow range of tariffs it upheld under TWEA, and not apply it to IEEPA at all. Even if Yoshida does apply, it explicitly rejects the kind of sweeping tariff authority claimed by the Trump Administration.
In sum, I completely agree with EB that it would be good if appellate courts struck down Trump's IEEPA tariffs under the nondelegation doctrine. Indeed, I have said as much since my very first piece on the subject, back in February (the post that eventually led to the filing of our case).
But there are also multiple additional reasons to rule against the tariffs, including 1) IEEPA doesn't authorize tariffs at all, 2) trade deficits are not an "emergency" or an "unusual and extraordinary threat" 3) deficit-related tariffs are now governed by the Trade Act of 1974 (a point noted by the CIT), not IEEPA, 4) the major questions doctrine, and 5) constitutional avoidance (relied on by both CIT and Judge Contreras). We cover all these in much more detail in our Federal Circuit brief.
Third Circuit Judge Paul Matey argues no, dissenting in Qatanani v. Attorney General. (The two judges in the panel majority seem to disagree, stating that "the [Board of Immigration Appeals] penalized Qatanani for quintessential First Amendment activity," but declines to discuss the matter in detail because it concludes Qatanani should prevail on statutory and procedural grounds.) Here's an excerpt:
Qatanani entered the United States in 1996 on a H-1B nonimmigrant visa with authorization to serve as an imam at The Islamic Center of Passaic Country (ICPC) until April 1, 1999. Rather than leave, he applied to adjust his status to lawful permanent residence (LPR). After almost two decades of administrative proceedings, an Immigration Judge (IJ) found Qatanani eligible for a status adjustment and deserving one as a matter of discretion. But the Board of Immigration Appeals (BIA) disagreed [in April 2024], noting Qatanani's lack of candor, admitted association with Hamas supporters, public call for a "new intifada," and failure to demonstrate yearly tax filings. As I explain below, I would not disturb the BIA's decision…. [Statutory and procedural details omitted. -EV]
Finally, I explain why the BIA's review of Qatanani's Times Square speech and admitted associations with Hamas supporters does not violate the First Amendment. Of course, an alien's speech can offer important insight into his character that informs the Executive's determination about whether the alien's presence will add to the common good. None disagree with that observation, nor does the First Amendment because Qatanani is not part of "the people" the First Amendment protects, nor is the denial of LPR status a punitive action….
[A]n alien "does not become one of the people to whom" the First Amendment applies "by an attempt to enter, forbidden by law." U.S. ex rel. Turner v. Williams (1904). That is because "[t]o appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise." So there is no debate that excluded aliens cannot invoke the First Amendment.
Whether the First Amendment restrains government action against all aliens within our Nation's borders is less explored. Begin with Bridges v. California (1941), involving state contempt charges against a group including a resident alien lawfully within the country for at least two decades. With little analysis, the Court concluded the contempt charge was impermissible under the First Amendment. But the Court did not mention, let alone analyze, Bridges's alien status.
A leading scholar in constitutional law, Fallon was widely regarded for his insightful, prolific academic output and his commitment to thoughtful debate.
He has written extensively about the Supreme Court and constitutional interpretation, tackling how the more than 200-year-old document applies to the country today. In 2021, he was nominated to the Presidential Commission on the Supreme Court of the United States, a committee established by then-President Joe Biden to investigate legal questions and possible reforms to the Supreme Court.
"HLS can be grateful for the more than forty years in which Professor Fallon wrote, taught, mentored, counseled, and led with extraordinary distinction," Goldberg wrote in the Monday announcement of Fallon's death. "His passing leaves a hole in our community that cannot be filled."
Fallon was also remembered by former students and colleagues for his humor and his down-to-earth nature — qualities many said could be uncommon in the rarefied halls of Harvard Law School.
Cass R. Sunstein, a professor at HLS, wrote in a statement to The Crimson that Fallon combined his intellectual "brilliance" with "humility in a way I have never seen in all my years."
After the Supreme Court's Dobbs decision, West Virginia adopted a law, the Unborn Child Protection Act, that prohibits abortion in most circumstances. As enacted, the prohibition extends to medication abortions, such as those which may be performed with mifepristone.
GenBioPro, a manufacturer of generic mifepristone, challenged the West Virginia law, arguing that the prohibition is preempted by federal law, and the FDA's regulations governing the prescription and administration of mifepristone in particular, insofar as it prevents doctors from prescribing mifepristone for the purposes of terminating a pregnancy.
A federal district court rejected GenBioPro's claim. Today, in GenBioPro v.Raynes, a divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed. Judge Wilkinson wrote for the court, joined by Judge Alston (sitting by designation). Judge Benjamin dissented.
Judge Wilkinson's opinion for the court begins:
After the Supreme Court "return[ed] the issue of abortion to the people's elected representatives" in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, 232 (2022), West Virginia enacted a law prohibiting abortion in most circumstances. The question before us is whether certain federal standards regulating the distribution of the abortion drug mifepristone preempt the West Virginia law as it applies to medication abortions. The district court determined there was no preemption, and we now do the same.
For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance. Appellant GenBioPro finds this clear directive in a maze of provisions in the Food and Drug Administration Amendments Act of 2007. It argues that these provisions vested the FDA with the exclusive authority to regulate access to mifepristone. We disagree. In our view, the Act leaves the states free to adopt or diverge from West Virginia's path. Because the Act falls well short of expressing a clear intention to displace the states' historic and sovereign right to protect the health and safety of their citizens, we affirm.
The body of the opinion briiefly addresses standing (an easy question here), and then applies the existing law of preemption (such as it is) in a rather straight-forward manner (albeit in a typical Wilkinsonian way), implicitly acknowledging that the current Supreme Court does not appear particularly sympathetic to preemption claims. (One of several ways in which the current Court is less "pro-business" than is commonly assumed.)
Given the general presumption against finding preemption of traditional state authority, absent a clear congressional directive, the argument that federal pharmaceutical regulations preempt state abortion laws is hard to make. As in many contexts, the federal regulations provide a "floor" of regulation that states may exceed, as West Virginia has here, placing far greater limitations on the use of mifepristone (a de facto prohibition for its use in abortion) than does the federal government.
In this post I look at my book's key findings on the effects of hate speech and the controversies surrounding its regulation. This analysis lays out the groundwork for understanding both the harms attributed to hate speech and the dangers of over-regulating it in democratic societies. The central question is twofold: Does hate speech cause real-life harm? And if so, should that harm be addressed through legal restrictions on speech? The ECtHR systematically answers "yes," often without the depth of inquiry such a consequential response demands.
Hate speech and harm
One of the key contributions the book's chapter on hate speech, its effects and the questions of regulation is to unpack the multi-level impact of hate speech on individuals (micro), groups (meso), and society (macro). Drawing on work by scholars such as Mari Matsuda, Jeremy Waldron, Alexander Tsesis, and others, I trace how hate speech is said to erode dignity, reinforce systemic inequalities, and, in some contexts, incite violence.
That's a new one on me, from a UK trademark appeal; the plaintiff, who was self-represented, admitted to using generative AI, and the defendant's lawyer was strongly suspected of so doing:
8. At the start of the hearing, I asked Dr Soufian if he had drafted the documents and he said he had drafted it with the assistance of Chat GPT. I pointed out the numerous errors in the citations and problems with the skeleton and he politely apologised and did so unreservedly. Before moving on, it is worth noting that most of the skeleton produced by Chat GPT was made up of arguments purportedly relating to the evidence in the case. However, the factual issues highlighted were largely not relevant to the issues before me and the proposed arguments were not very helpful. In other words, even aside from the fabricated citations, the output of Chat GPT was in fact unhelpful to him.
9. In the case of Mr Caddy, who is a trade mark attorney, his skeleton argument dated 6 June 2025 included three cases which existed and were correctly cited. But it was unclear to me the cases cited stand for the propositions claimed by Mr Caddy.
10. During the Hearing, I asked Mr Caddy to identify the part of the judgments which supported the propositions made. He said, "I cannot actually remember that now, to be honest with you". I gave him time to read the judgments so as to find the relevant paragraphs. He could not do so. He then said he got the references from a "previous edition of Kerly's Law on Trade Marks". I could not find any support for the propositions (or anything similar) in Kerly during the hearing. He then said he could not remember where he got them from, saying maybe it was Wadlow [on the Law of Passing Off] but said he went on to say that did not make much sense. After the hearing, I checked Wadlow and could not find anything matching the propositions.
Yesterday the Senate confirmed Whitney Hermandorfer to a seat on the U.S. Court of Appeals for the Sixth Circuit. A well-qualified nominee who I expect will make an excellent judge, Hermandorfer is the first judicial nominee to win confirmation in Donald Trump's second term.
As various news outlets have noted, judicial nominations are lagging in Trump's second term. The Administration has been slower to make nominations and the Senate has been slower to act than during the first Trump Administration. On top of that, there are fewer vacancies to fill, as many judges eligible for senior status are electing to remain on the bench (and there is speculation as to why that might be).
As of this morning, there are forty-nine current vacancies on the federal bench, and thirteen more future vacancies (which occur when judges announce their intent to retire or take senior status at a date in the future or upon confirmation of a successor). There are only eleven nominees pending before the Senate, however. (Three more nominees have been announced but have not been formerly submitted.) Of these, only five are on the circuit courts of appeals.
As for what could be, by my count there are forty circuit court judges eligible to take senior status, only two have which have announced their intention to create a vacancy. Of those twenty-six were appointed by Republican Presidents. What these judges decide to do could have a substantial effect on President Trump's ability to shape the judiciary during his second term.
The plaintiffs alleged that Uber knew the passenger had committed two carjackings about a month before, should have warned Lyft about that. (The killer used the same e-mail address for both his Lyft and Uber accounts.) The father drove for both Uber and Lyft, but the killer called him using the Lyft app. No liability, as a matter of law, Judge Stephen Clark (E.D. Mo.) concluded Friday in Newman v. Uber Technologies, Inc., denying plaintiffs leave to amend their complaint on the grounds that such an amendment would be futile:
In Ameer [a previous Missouri case], Rochelle Ameer sued Lyft, a rideshare platform, after a rider "fraudulently and anonymously requested through Lyft's mobile ridesharing application" a ride from Ameer's son and killed him. Ameer asserted, among other claims, a negligence claim based on a wrongful-death theory…. [T]he Missouri Court of Appeals [held the case could go forward].
The complaint in Ameer alleged that two minors, who were "supposed to be ineligible to order rides through the Lyft [a]pp, met and conspired together to use the [a]pp to carjack a Lyft driver." The minors requested a ride through the Lyft app, and Ameer's son accepted the request. After Ameer's son arrived, the minors announced a robbery, pulled guns on Ameer's son, attempted to force him out of the car, and eventually shot and killed him. Ameer alleged that the minors had previously, on multiple occasions, carried out the same carjacking scheme that they carried out on Ameer's son. Ameer also alleged that "Lyft knew or should have known that multiple rideshare drivers had been assaulted, attacked, and carjacked as a result of the same fraudulent scheme."
In addressing the negligence claims, the Missouri Court of Appeals first acknowledged the general rule that "[a] duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable." But the court recognized that, where "a victim is injured at a location other than the defendant's premises," two exceptions to the general rule exist. First, a duty exists where "the defendant 'should realize through special facts within his knowledge…that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.'" Second, a duty exists where "the defendant 'has brought the victim into contact or association with a person or persons whom he knows or should know to be particularly liable to commit criminal acts, and under circumstances [that] afford a peculiar opportunity or temptation for such misconduct.'"
The European Court of Human Rights (ECtHR) has traditionally maintained that freedom of expression safeguards speech that may "offend, shock or disturb." However, its stance on hate speech is not in line with this core principle. My book, "Hate Speech and the European Court of Human Rights" (Routledge, 2025), argues that the ECtHR's current trajectory, anchored in what I term the "low-threshold hatred paradigm" jeopardizes free speech by permitting restrictions on expression that is merely insulting or prejudicial, without any requirement of incitement to violence or hostility. Drawing on doctrinal analysis and normative critique, the book contends that the ECtHR's hate speech jurisprudence suffers from conceptual ambiguity, internal inconsistencies, and a lack of empirical grounding. The book examines hate speech jurisprudence of the now defunct European Commission on Human Rights and the ECtHR to allow for an inclusive analysis from the very onset of relevant cases. This guest blog will feature a series of five posts that highlight some of the book's key findings. The first post provides a general overview of some of the key issues developed in the book, followed by thematic explorations in the subsequent entries.
Definitions and justifications
The book starts off with the conceptual foundation for the book's critique. The initial chapter evaluates the disjointed and variable understanding of hate speech among international, regional, and national entities, such as the Council of Europe, the United Nations, the European Union, and prominent social media platforms. I contend that this ambiguity influences the ECtHR's jurisprudence, which is characterized by an unclear threshold and depends on normative rather than empirical evaluations of harm.
After grappling with definitional issues, the book considers the possible effects of hate speech, drawing from psychological, sociological, and legal scholarship. The chapter critically examines whether criminalization is an effective or justified response, warning of unintended consequences like the creation of martyrs, pushing hate underground, or chilling legitimate dissent. It emphasizes the ECtHR's tendency to adopt a militant democracy without substantively engaging with academic evidence on speech harms or the effectiveness of restrictions. This undermines both the freedom of expression and the democratic values the ECtHR aims to protect. To this end, I argue that:
Justice Kavanaugh's concurrence in Trump v. CASA is one of his most significant opinions to date. It ranks up there with his concurrence in Labrador v. Poe and his dissent in Calvary Chapel. In CASA, Justice Kavanaugh sketches how he views the role of the Court with regard to the "interim before the interim." Here, Kavanaugh develops ideas that were not present in the briefing, but instead seem novel enough. That's not to say I agree with everything Kavanaugh wrote. I don't, as I'll note before. But this opinion reflects significant original thought. Indeed, I thought Kavanaugh was the most prepared justice during the CASA oral argument.
At a high level, Justice Kavanaugh wants us to move beyond the abstraction of TROs and the the emergency docket. The reality is that when Presidents take executive actions, district courts will be asked to stop the policy. Kavanaugh labels this immediate period as the "interim before the interim."
The Court's decision today focuses on the "interim before the interim"—the preliminary relief that district courts canaward (and courts of appeals can approve) for the generally weeks-long interim before this Court can assess and settle the matter for the often years-long interim before a final decision on the merits.
Regardless of what the lower court does, the Supreme Court will settle the "interim" status as the ultimate decision-maker.
I write separately simply to underscore that this case focuses on only one discrete aspect of the preliminary litigation relating to major new federal statutes and executive actions—namely, what district courts may do with respect to those new statutes and executive actions inwhat might be called the "interim before the interim."
This Court has therefore often acted as the ultimate decider of the interim legal status of major new federal statutes and executive actions. See, e.g., Ohio v. EPA, 603 U. S. 279 (2024); Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, 598 U. S. ___ (2023); National Federation of Independent Business v. OSHA, 595 U. S. 109 (2022) (per curiam); Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758 (2021) (per curiam); see also Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 2– 3).
After today's decision, that order of operations will not change. In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions—that is, the interim legal status for the several-year period before a final decision on the merits.
I think the outrage about the "shadow docket" has run its course. The simple reality now is that lower courts serve as an effective councils of revision for every act the President takes, and the Court's emergency docket provides a quick review of those actions. You can think of it as lower-courts providing a veto, which the Supreme Court can override.
I do have to quibble with one aspect of Kavanaugh's analysis. He repeatedly uses the phrase "federal statutes and executive actions."
From the Motion to Dismiss in State v. Katzgrau, written by Bruce Rosen (Pashman Stein Walder Hayden, P.C.); the analysis seems to me quite correct, and the G.D. v. Kenny decision from the New Jersey Supreme Court strikes me as dispositive:
This case involves a media entity's alleged violation of N.J.S.A. 2C:52-30, which makes it a disorderly persons offense to knowingly reveal the existence of an expunged arrest. The arrest in question was published in the Red Bank Police Department's monthly police blotter report and then republished on the Red Bank Green local news website. Several months after the publication, the arrest was expunged.
The U.S. Supreme Court has stated numerous times that publication of truthful information on matters of public significance cannot be punished unless it involves a state interest of the highest order. But even more significantly, the New Jersey Supreme Court has specifically explained that the media and private citizens cannot be prosecuted under N.J.S.A. 2C:52-30, even if they knowingly disclose or discuss an expunged arrest, because doing so would be a blatant violation of their federal and state constitutional rights of free speech.
The Institute for Free Speech's First Amendment Fellowship allows recent law school graduates, judicial clerks, and mid-career attorneys the chance to gain practical experience litigating constitutional challenges. Fellows will work alongside the Institute's attorneys to tackle all aspects of trial and appellate practice in cases challenging restrictions on Americans' rights to freely speak, publish, assemble, and petition.
Fellowships are for one year, typically beginning each August or September, and are intended to prepare attorneys for careers in constitutional advocacy. The fellowship is excellent preparation for a judicial clerkship, a career change, a public interest litigation career, academia, or private practice. It can also lead to a permanent position at the Institute for Free Speech.
Fellows are expected to work full time in our Washington, D.C. office, but other arrangements may be available to especially outstanding candidates. . . .
Applicants should submit a cover letter, resume, law school transcript, contact information for three professional and/or character references, and a writing sample in one combined PDF file to info@ifs.org. Applications will be reviewed on a rolling basis for fellows seeking a position in the 2025-26 term, or beyond.
The Buckeye Institute is seeking a legal fellow to work on-site, in person, in Columbus, Ohio. Duties include substantive legal and policy research involving exciting and cutting-edge issues and cases. The legal fellow may have active participation (under the guidance of Buckeye's professional legal team) in high-profile cases pending before state and federal courts as well as preparing for filing new lawsuits. The role may also involve assisting with the preparation of amicus curiae briefs to be filed in federal circuit courts or even the Supreme Court of the United States. This position is open to newly-graduated law students who have not yet passed the bar as well as bar-admitted attorneys. Preference will be given to lawyers with one to five years of experience. The legal fellow is expected to work full-time during regular business hours when The Buckeye Institute's office in Columbus, Ohio, is open (9 a.m. to 5 p.m.). The application process is highly competitive. Accordingly, applicants should demonstrate academic excellence, outstanding verbal and written communication skills, strong research capabilities, and a commitment to limited government and free-market public policy solutions.
the mood of bitter hostility toward the Supreme Court has been a general feature of Democratic politics for much of the past decade — and especially since its 2022 decision to allow states to prohibit abortion. That critique of the court is heartfelt for many progressives. But it has a flaw that is becoming more and more apparent in Trump's second term: The Democrats can't decide whether they want the institution to be stronger or weaker. . . .
Whatever merit progressive proposals to contract the power and prestige of the Supreme Court might have, they are not a plausible means of restoring it to its former role as the champion of liberal principles. A court with reduced jurisdiction, whose members fear removal by the political branches and whose decisions command little respect from the broader political culture: That's not an institution that can perform what Jackson recently called "the singular function of ensuring compliance with the Constitution" and "protecting people's rights."
A high regard for the court is particularly important now that progressives have (rightly) made it a priority to make Trump follow court orders. They can argue that the court is illegitimate or that Trump has a high duty to obey it. They seem unlikely to persuade the public that Trump has a solemn obligation to comply with an illegitimate court.
Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.
Academics are supposed to discover and promote counterintuitive, nonobvious ideas. That should be especially true for me, given that I hold many unpopular views, and am deeply opposed to populism of both the left and right-wing varieties. A Man of the People I am not.
But, especially in recent years, much of my work actually consists of defending intuitive ideas against other experts who reject them. When I describe these issues to laypeople, I often get the reaction that the point in question is just obviously true, and incredulity that any intelligent person might deny it.
Some examples:
1. Widespread voter ignorance is a serious problem for democracy. Academic experts have generated a large literature trying to deny this; I critique it in works like Democracy and Political Ignorance: Why Smaller Government is Smarter. It is ironic that this anti-populist idea is, on average, more readily accepted by ordinary people than by academic experts. But that's been my experience over more than 25 years of writing and speaking about this subject.
2. "Public use" means actual government ownership and/or actual use by the public, not anything that might benefit the public in some way. The Supreme Court and lots of legal scholars disagree! See my book The Grasping Hand: Kelo v. New London and the Limits of Eminent Domain, for why they're wrong. In teaching cases like Kelo v. City of New London, I usually end up spending much of the time explaining why the Court's rulings might be right (even though I oppose them myself). Most students find these decisions intuitively repugnant, and it is my duty - as an instructor - to help them to see the other side.
3. "Invasion" means an organized military attack, not illegal migration or cross-border drug smuggling. The Trump administration, multiple state governments, and a few academics say otherwise. I have written various articles (e.g. here and here) and amicus briefs (see here and here) explaining why they're wrong.
4. The right to private property includes the right to use that property, and significant restrictions on the right to use qualify as takings of private property under the Constitution. The Supreme Court has long said otherwise, and lots of legal scholars agree. For why they're wrong, see my article "The Constitutional Case Against Exclusionary Zoning" (with Joshua Braver). I have a forthcoming book chapter that gets into this issue in greater detail.
7. Emergency powers should only be used in actual emergencies (defined as sudden crises), and courts should not assume an emergency exists merely because the president or some other government official says so. Instead, the government should bear the burden of proving that an emergency exists before it gets to exercise any emergency powers. A good many experts and judges disagree, at least in some respects, and so too do most presidential administrations.
In some cases, the above premises have counterintuitive implications, even fairly radical ones (this is especially true of points 1, 4, 5, and 6 above). But the premises themselves are intuitive ones that most laypeople readily accept, but many experts and other elites deny.
I do, of course, have various works where I defend counterintuitive ideas, such as these:
3. Racial and ethnic groups - including seemingly "indigenous" ones - do not have collective property rights to land that entitle them to exclude others (see Ch. 5 of Free to Move and this article).
4. Organ markets should be legalized, and are no more objectionable then letting people do dangerous work for pay, such as being a lumberjack or an NFL player.
But defending the intuitive and even the seemingly obvious is an outsize part of my publication record.
I certainly do not believe that intuitive ideas are always right, and counterintuitive ones always wrong. Far from it! If intuition were an infallible guide to truth on contentious issues, we wouldn't need expertise.
I am not entirely sure why I have ended up defending so many intuitive positions. One possibility is that I have much less love and patience for legal technicalities than many legal scholars do, and thus am more attracted to arguments based on fundamental first principles (many of which have an intuitive dimension). Also, as a libertarian in a field where most people have widely differing views, there may be an unusually large number of situations where my predispositions diverge from those of other experts, and some of them are also cases where the views of the field diverge from common intuitions.
That said, there is some advantage to defending intuitively appealing arguments in situations where the opposing view is either dominant among experts, or (as in the case of "invasion" above) has the support of a powerful political movement. Having intuition on your side makes persuasion easier.
In some cases where most experts oppose an intuitive view, it's because their superior knowledge proves the intuition wrong. But there are also situations where that pattern arises because of some combination of ideological bias and historical path-dependency. I think that is what happened in the property rights and federal powers examples, discussed above. It can also happen that such biases afflict commentators and government officials on one side of the political spectrum who have incentives to make it easier to implement "their" side's preferred polices (I think that is right now the case with "invasion").
If you can identify situations where a view widely accepted among experts or elites diverges from intuition without good reason, it creates opportunities for especially compelling books and articles. It's probably no accident that works defending intuitive views figure disproportionately among my most widely cited publications.
That said, I am probably not the most objective judge of whether I have identified the right intuitive ideas to defend. That question can't be answered just by relying on intuition! Readers will have to decide for themselves.
In Trump v. CASA, Justice Kavanaugh extolled the power of the Supreme Court as a supreme institution. In the process, he took a not-so-subtle shot at the inferior courts:
But district courts and courts of appeals are likewise not perfectly equipped to make expedited preliminary judgments on important matters of this kind. Yet they have to do so, and so do we. By law, federal courts are open and can receive and review applications for relief 24/7/365. See 28 U. S. C. §452 ("All courts of the United States shall be deemed always open for the purpose of filing proper papers . . . and making motions and orders").
When I read this passage, I suspected it was a response to Judge Ho's concurrence in AARP v. Trump. Jon Adler read it the same way.
I first saw this statutory argument made by Adam Unikowsky. But I'm not sure it works.
First, as a threshold matter, the statute is limited to filing papers, not for the court to review or rule on those papers. Congress has established the Civil Justice Reform Act which tracks how many motions are pending for longer than six months. But there is no congressional deadline to actually decide cases.
Second, we should determine the original meaning of the statute when it was enacted. A version of this statute was passed back in 1948 (62 Stat. 907). Another version was passed in 1963 (77 Stat. 248). At either time, it would have been impossible to file papers overnight, unless special arrangements were made to keep the clerk's office open. There were no cell-phones, emails, or faxes. Even to this day, the Supreme Court closes in the evening according to building regulation one. I don't think a pro se litigant can walk up to the Supreme Court a midnight and hand a brief to a Supreme Court police officer.
Thankfully, ECF allows late-night filings. But again, unless there is some way that judges are to be notified that important filings will be made overnight, there can be no expectation that judges can review those filings. Surgeons will keep pagers to alert them about emergency procedures. But Judges do not wear pagers that alert when a TRO is filed.
I will repeat the facts in AARP as many times as needed. The ACLU made a filing after midnight, and there was no notice in advance when the filing would made. There is no reasonable expectation that a judge will sit at his computer all night in anticipation of a possible filing. Judge Hendrix began to resolve the motion the next morning. Yet, the Supreme Court charged him with failing to respond to a motion filed overnight while he was sleeping. Facts are stubborn things.
Third, the Supreme Court has proven that it does not review emergency applications in a timely fashion. Justice Jackson let the emergency application in Libby v. Fectausit several days without calling for a response. Eventually she called for a response, and the Court ultimately granted the application. Other justices have taken time to call for responses. Judge Hendrix's prompt attention was admirable. Justice Jackson's dilatory tactics were questionable. Even then, the Court can still sit on emergency petitions for weeks at a time.
Justice Kavanaugh observed:
On top of that, this Court has nine Justices, each of whom can (and does) consult and deliberate with the other eight to help the Court determine the best answer, unlike a smaller three-judge court of appeals panel or one-judge district court.
Whatever the timeline is for a single district court judge with a busy docket to rule, the timeline should be accelerated for nine Supreme Court Justices with a full complement of law clerks to decide.
I realize the thrust of CASA is that different rules apply to lower courts than to the Supreme Court. But if the Supreme Court wants to rebuke lower courts for not acting promptly enough, the Justices should police their own conduct.
Update: I am reliably informed that if a person hand-delivers papers to an on-duty Supreme Court police officer overnight, the officer will time-stamp the papers, and deliver it to the clerk's office when it opens in the morning. At that point, the clerk's office will forward the papers to the appropriate chambers. This practice, apparently, is not codified in any formal rule of the Court. (Much of what the Court does is unwritten.) It is possible that a deputy clerk will remain after-hours if counsel communicates that an urgent filing is forthcoming. This practice is common when a late-night execution is planned.
I think I understand why Justice Kavanaugh in particular was so adamant on this point. At the Supreme Court, and probably at the D.C. Circuit, counsel were always in close communication with the clerk's office about an imminent filing, and required everyone to be on call. That simply was not done in Lubbock. And the Supreme Court's opinion in AARP doesn't indicate that any such notice was provided. So, the ACLU filed papers overnight, and they were reviewed in the morning by the District Court judge.
In this post I look at my book's key findings on the effects of hate speech and the controversies surrounding its regulation. This analysis lays out the groundwork for understanding both the harms attributed to hate speech and the dangers of over-regulating it in democratic societies. The central question is twofold: Does hate speech cause real-life harm? And if so, should that harm be addressed through legal restrictions on speech? The ECtHR systematically answers "yes," often without the depth of inquiry such a consequential response demands.
