The New York Attorney General field suit against Russ Vought, asserting that he has effectively shuttered the Consumer Finance Protection Bureau. Did AG James file suit in Albany? Of course not. There are a few Republican appointed judges there. Did she file in the District of Columbia, where she has a 100% chance of success before the en banc D.C. Circuit? No. Injunctive relief is far too important here. Instead, James chose the District of Oregon. And not in Portland. There are two Republican appointees there (one of whom blocked Trump's military deployment).
Instead, James chose the Eugene Division. I've been to Eugene, Oregon to speak at the University of Oregon. As fate would have it, I visited the city the day after the 2016 presidential election. I felt like I was walking through a wake.
In case you were curious, there are three judges assigned to the Eugene division. Judge Mustafa Kasubhai (Biden nominee), Chief Justice Michael McShane (Obama nominee), and Ann Aiken (Clinton nominee).
And which judge got the case? Judge Aiken! If that names sounds familiar, it should. She presided over the long-running Juliana litigation. A group of children argued that they had standing to challenge energy policy because of alleged effects from climate change. Co-blogger Jon Adler has chronicled Judge Aiken's follies over the years. Indeed, Aiken was reversed by the Ninth Circuit several times.
I don't want to ever hear any complaints over forum shopping, ever again. Liberals engage in forum shopping in Eugene. Conservative engage in forum shopping in Lubbock. Get over it. Fittingly, the University of Oregon is about to play Texas Tech in the College Football Playoffs. Wreck 'Em Raiders.
In an insightful recent post, economist Tarnell Brown explains why the economic effects of immigration restrictions are similar to those of racial discrimination and segregation. He builds on Nobel Prize winner Gary Becker's famous theory of discrimination and South African economist W.H. Hutt's classic critique of apartheid, The Economics of the Colour Bar:
Racism and immigration restrictions are often sold as hard-headed realism: protecting "our" jobs, "our" communities, "our" way of life. The sales pitch leans on a simple story—exclude the "wrong" people and the "right" people will prosper. Gary Becker and William Hutt both spent careers dismantling that story, and the empirical record has been quietly backing them up ever since. Once you translate prejudice into costs, discrimination looks less like realism and more like an especially expensive luxury good.
As Brown explains, Becker and Hutt's insights explain that racial discrimination and segregation are economically harmful because they force employers to forego more productive workers from the disfavored group in favor of less productive ones from the dominant group. That obviously harms the excluded group. But it also lowers economic growth and innovation, ultimately harming even most members of the more privileged group. Immigration restrictions have much the same effects:
If Becker's discriminator is willing to pay more for the same output, and Hutt's white unionist is willing to shrink the industry to protect his wage, immigration restrictionists are willing to shrink the labor force itself. The logic is familiar: fewer immigrants mean less competition for "our" jobs and higher wages for native workers. The empirical record looks more like a modern color bar.
· Innovation and entrepreneurship. Immigrants are disproportionately represented among patent holders, startup founders, and STEM workers. Curtailing inflows therefore clips not just current output but future growth, by lowering the rate at which new products, firms, and technologies appear.
The historical analogy to Hutt's South Africa is not rhetorical. The Chinese Exclusion Act of 1882, a classic piece of racially explicit labor protectionism, offers a clean test case. Recent research finds that areas that lost Chinese workers experienced dramatic declines in manufacturing—output down more than 60%, the number of establishments down 54–69%—as labor shortages rippled through the local economy. White workers were not "protected"; they were stranded in less dynamic labor markets with fewer opportunities and slower wage growth.
The modern U.S. has not reenacted Chinese Exclusion word-for-word, but the pattern is similar: a tightening of legal migration channels and aggressive enforcement campaigns in the name of "protecting" native workers. The Dallas Fed and others now warn that declining immigration will weigh on GDP growth for years, with little to show in terms of sustained wage gains for the least skilled natives. In Becker's terms, the country is paying more for the same work; in Hutt's terms, it is choosing a smaller pie so that a political coalition can claim symbolic victories.
I mad similar points - in a less sophisticated way - in a 2024 post on how mass deportations destroy more jobs for native-born Americans than they create:
The key theoretical point is that, while deporting immigrants often does create jobs for natives who directly compete with them, it destroys more elsewhere in the economy. For example, immigrant workers produce goods that are used by other enterprises, thereby creating jobs there. Immigrants start new businesses at higher rates than natives. That, in turn, creates new jobs for both natives and immigrants. And, of course, immigrant workers produce goods and services that greatly improve the options available to native-born consumers (thereby indirectly making them wealthier)….
One helpful way to think about the issue is to ask whether the twentieth-century expansion of job market opportunities for women and blacks helped white male workers, on net, or harmed them. Some white men likely were net losers. If you were a marginal white Major League Baseball player displaced by Jackie Robinson or other black baseball stars after MLB was integrated, it's possible that you would never find another job you liked as much as that one. But the vast majority of white men were almost certainly net beneficiaries by virtue of the fact that opening up opportunities for women and blacks greatly increased the overall wealth and productivity of society.
If, today, we barred women from the labor force, or restricted them to the kinds of jobs open to them a century ago, some male workers would benefit. For example, freed of competition from female academics, I might get a pay increase or become a professor at a higher-ranked school.
But, overall, men would be much poorer, by virtue of living in a far less productive and innovative society. And many men would lose jobs or suffer decreases in wages because their own productivity depends in part on goods and services produced by women. While I might have a more prestigious job, I would likely be poorer, overall, because I could no longer benefit from many of the goods, services, and innovations produced by female workers.
Similar consequences would occur if we were to reinstitute racial segregation, thereby severely restricting the job opportunities of black workers. While some whites would come out ahead, most would be net losers, as our economy becomes much less productive.
The key point to remember is that the economy - including the labor market - is not a zero-sum game. Men and women, blacks and whites - and immigrants and natives - can all prosper together, if only the government would let them.
Economic effects are not the only way in which immigration restrictions resemble racial segregation. The two policies are also both unjust by virtue of restricting freedom and opportunity based on morally arbitrary circumstances of ancestry and birth. I develop and defend that point in this article, and in Chapter 5 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
Plaintiff's Letter to Judge Brian Murphy Regarding the Negative Reaction of the Legal Community to the Order of Dismissal
I write this letter to bring to Your Honor's attention a sample of negative reactions in the legal community to the Order of dismissal of the complaint, entered on November 25, 2025.
This one from the Stanford Law School, correctly pointing out the huge and significant differences between a crime of moral turpitude, i.e., spying, and a FARA disclosure violation. In fact, Your Honor's own order admits to such a huge difference and, yet, papers over its own insight by dismissing the action any way, contrary to the spirit of American justice;--As I plan to submit my Motion For Reconsideration in the next several days, I hope that Your Honor puts this matter in proper perspective with respect to the likely damage to the image of a fair and impartial justice for time to come if this unfair decision, manifesting a clear error of law, is not modified. The above-said reaction (link below) is worth quoting at length:
The decline of this major conservative institution has been a wakeup call for conservative intellectuals. But will they draw the right lessons from it?
The immediate cause of the exodus was Heritage President Kevin Roberts' defense of anti-Semitic "influencer" Tucker Carlson and his support of Nick Fuentes, an even more virulent anti-Semite. As it has become clear that Roberts refuses to break his ties with Carlson and unequivocally condemn right-wing anti-Semitism, and that the Heritage board won't remove Roberts, more and more people have left Heritage.
Perhaps more importantly, the Heritage scandal has served a kind of wakeup call to many conservative intellectuals who were previously inclined to ignore or minimize dangerous trends in the Trump-era political right. As I have previously noted, the rot at Heritage long predates the current scandal. I myself decided to forego any potential future collaboration with Heritage years ago, which is why I refused an invitation to contribute to the Heritage Guide when Josh invited me (I should have been fully honest about my reasons for refusing, at the time). I had been a college student intern at Heritage way back in 1994, when the organization was very different from what it is today.
It would have been better if those now leaving Heritage had recognized the organization's moral deterioration earlier. But better late than never! And I certainly understand that such a break is more psychologically painful for people who consider themselves conservatives and had longstanding close ties to the organization, than it was for me. I am a libertarian, not a conservative, and I have had only limited contact with Heritage since that long-ago internship.
There is, I hope, growing recognition that the problem here goes well beyond Kevin Roberts (though Roberts certainly deserves blame). In his resignation letter, Josh Blackman laments that Roberts "aligned the Heritage Foundation with the rising tide of antisemitism on the right," implying that the "tide" is a more general phenomenon. In a statement welcoming the former Heritage scholars to AAF, former VP Pence said "these people are coming our way [because]…. Heritage and some other voices and commentators have embraced big-government populism and have been willing to tolerate antisemitism."
I hope Josh, Pence, and other conservatives will come to recognize more fully that the root of the problem is the Trump-era shift of most of the American right towards ethno-nationalism. For reasons outlined in detail in my recent UnPopulist essay on this topic, nationalist movements are inherently prone to anti-Semitism and other forms of racial and ethnic bigotry. It is not surprising that anti-Semitism among MAGA conservatives has risen alongside nativism and bigotry towards other minority groups, such as Indian-Americans.
As I explained in the UnPopulist article, the only sure way to avoid this problem is to reject ethnic nationalism and instead recommit to the universalist principles of the American Founding, which the Heritage Foundation once claimed to stand for, but has more recently betrayed:
Conservatives who seek to curb the growth of antisemitism on the right must reject nationalism and recommit to the principles of the American Founding.
In his resignation statement from the Heritage board, Robert George urged Heritage to be guided by the principles of the Declaration of Independence, especially the idea "that each and every member of the human family, irrespective of race, ethnicity, religion, or anything else; … is 'created equal' and 'endowed by our Creator with certain unalienable rights….'"
In his General Orders to the Continental Army, issued on the occasion of 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." Other leading Founding Fathers—including James Madison and Thomas Jefferson—expressed similar sentiments.
Washington sounded a similar theme in his famous 1790 letter to the congregation of the Rhode Island Touro Synagogue, in which he avowed that the United States has "an enlarged and liberal policy," under which "All possess alike liberty of conscience and immunities of citizenship," and that the U.S. government "gives to bigotry no sanction, to persecution no assistance." America, he emphasized, went beyond "mere toleration" of Jews to granting them full equality. It could do so because American identity was based on universal liberal principles, not ethnic or religious particularism.
The United States has never been completely free of bigotry, including antisemitism, or fully lived up to its ideals. But it has never given up on these ideals either, as much of the right effectively wants it to do now. America has been relatively more free of such prejudices than many other nations, precisely because of its universalist roots. We have also been at our most successful when we reject zero-sum thinking, and instead recognize that the success of Jews, Indians, and other minorities and immigrant groups is beneficial to the majority, rather than harmful to it….
A conservative movement that recommits to the universal principles of the Founding need not abandon all its differences with the left, or with libertarians like me…. But we can unite in rejecting racial and ethnic bigotry.
For more on the dangers of nationalism, see my 2024 article, "The Case Against Nationalism," coauthored with Alex Nowrasteh.
From the Complaint in Bushart v. Perry County (W.D. Tenn.); as usual, note that these are just allegations, and I look forward to seeing any eventual court decision:
Larry Bushart spent 37 days behind bars simply for speaking his mind. It took a national uproar about his detention for Perry County officials to drop the charge against Mr. Bushart—a charge officials knew from the outset was unfounded.
On September 10, 2025, a gunman assassinated conservative commentator Charlie Kirk as he debated members of his audience at a Utah university. The attack dominated the national conversation. As many mourned Kirk, a passionate advocate for Second Amendment rights, others exercised their First Amendment rights by arguing his killing evidenced a need for stricter gun control measures. Some argued gun-rights advocates had downplayed gun violence in the past.
Ten days after Kirk's death, Larry Bushart—a 61-year-old retired law enforcement officer and a resident of Lexington, Tennessee—noticed a Facebook post promoting a candlelight vigil in nearby Perry County. Underneath it, he posted a series of political memes, the internet's version of political cartoons. One image (the "Meme") accurately quoted a statement President Donald Trump made after a January 2024 shooting at Perry High School in Perry, Iowa:
Defendant Perry County Sheriff Nick Weems understood Mr. Bushart's political message. He later acknowledged in a media interview that he and his deputies "knew" the Meme was not about Perry County High School in Tennessee, but about a 2024 shooting at a Perry High School in Iowa—a different school with a different name in a different state, some 695 miles away.
From Scaer v. City of Nashua, decided today by First Circuit Judge Sandra Lynch, joined by Judges Gustavo Gelpí and Jeffrey Howard:
On City Hall Plaza, the government property outside of [Nashua] City Hall that is open to the public, there are four flagpoles of varying heights. Until 2017, Nashua exercised exclusive control over the flags flown on the poles, choosing to display only government flags such as the American flag and the New Hampshire state flag. The City continues to exercise such control over three of the flagpoles. In 2017, after the election of Mayor James W. Donchess, who has since been reelected to that position, Nashua created what it called the "Citizen Flag Pole" as to one of the poles. The City's website, under the headings "Citizen Flag Pole" and "Fly a Flag," provided a statement, which in total read:
A pole in front of City Hall is reserved for the citizens of Nashua to fly a flag in support of their cultural heritage, observe an anniversary or honor a special accomplishment. Any group wishing to fly a flag must provide the flag….
Appellants Stephen and Bethany Scaer have resided in Nashua for three decades. Beginning in 2017, Bethany submitted and received approval for several applications to use the Citizen Flag Pole, including for flying the Luther Rose flag in honor of the 500th anniversary of the Protestant Reformation, the Lutheran flag, and a flag commemorating the ratification of the Nineteenth Amendment. For each approved request, Bethany supplied and raised the flag herself and organized a small flag raising ceremony not attended by any City officials.
Nashua initially approved Bethany's application to fly a "Save Women's Sports" flag, which the Scaers raised on October 10, 2020. The Scaers explain that the flag expresses their belief "that women have inalienable rights based on their biological sex that governments have a duty to protect and that allowing biological males to compete against women in sports denies women their rights and the equality due them under both the U.S. Constitution and Title IX." One day after the flag's raising, and after the City received complaints that the flag was transphobic, Nashua reversed its approval, revoked permission, and removed the flag from the Citizen Flag Pole.
Bethany appealed the decision to Mayor Donchess, who denied the appeal. He explained in a public statement on October 14, 2020, that Bethany's flag "contain[ed] a discriminatory message toward the transgender community" and that "Nashua is a welcoming community, in which we embrace all people and the contributions of all are celebrated and valued." Nashua's Corporation Counsel sent a letter to Bethany's attorney on November 11, 2020, stating that the Save Women's Sports flag "was outside of the parameters established for use of the citizen flag pole" and that use of that pole was "government speech."
From Thursday's N.Y. Appellate Division decision in Irizarry v. Zelaya (Judges Troy Webber, Ellen Gesmer, Lizbeth González, and John Higgitt) (see here for more details on the underlying election):
Plaintiff [Edward Irizarry] opposed defendant Betty Lugo in the June 2021 Democratic primary election for the office of Judge of the Civil Court of the City of New York…. Defendant Ariana Zelaya was a volunteer for the Lugo campaign.
Zelaya alleged that while standing on a public sidewalk in Manhattan, petitioning for Lugo, plaintiff "walked up to [Zelaya], stood very closely to her and aggressively grabbed the petition board from [Zelaya's] hands with force placing her in imminent fear of harm" and also "aggressively yelled at [Zelaya's] in a menacing and intimidating manner with the intent to cause intimidation, harm and fear." Zelaya initiated two actions against plaintiff, both of which were dismissed. Zelaya also filed a complaint with the police, which was dismissed as well.
Plaintiff commenced this action for defamation … based upon allegedly false statements, made in a campaign flyer and in tweets posted by Zelaya, accusing plaintiff of assaulting or harassing Zelaya and of abusing women more generally….
One of President Trump's first actions in his second term was an Executive Order purporting to limit birthright citizenship to the children of citizens and permanent residents. The Supreme Court will consider the lawfulness of this order in case to be heard this spring.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
It is generally accepted that this language did not extend citizenship to the children of foreign diplomats and hostile armies born on American soil, as neither would be "subject to the jurisdiction" of the United States. According to the Trump Administration, this language also excludes the children of temporary visitors and those not lawfully present in the country.
The Trump Administration position is based upon a revisionist account of the Fourteenth Amendment. While some recent scholarship has raised interesting points about the contours of Section One, and perhaps raised some questions about Congress's authority to define the scope of the jurisdiction of the United States, I am more persuaded by the conventional account.
A new study creates further doubts about the revisionist account. "The Dog That Didn't Bark: Eligibility To Serve In Congress And The Original Understanding Of The Citizenship Clause" by Amanda Frost and Emily Eason, forthcoming in the Georgetown Law Journal Online, notes the conspicuous lack of any effort to enforce a more restrictive understanding of birthright citizenship after the Fourteenth Amendment was adopted. Specifically, they note that no one sought to challenge the citizenship of any member of Congress on the grounds that they lacked citizenship and were thus ineligible to serve, even though multiple members of Congress during this period were born to individuals who were neither citizens nor the equivalent of lawful permanent residents.
As noted in this Adam Liptak story about the study, there were plenty of challenges to qualifications during this period, just not on the basis that birthright citizenship required the parents to be domiciled or seeking naturalization into the U.S.
Hundreds of challenges to the qualifications of members of Congress have been filed over the years on all sorts of grounds, spiking in the years around the ratification of the 14th Amendment, a time of furious partisan division. Between just 1865 and 1871, the qualifications of 18 senators were contested. Yet there was but one challenge to a senator's qualifications involving citizenship in those years.
Several Democratic senators claimed in 1870 that their new colleague from Mississippi, Hiram Rhodes Revels, the first Black man to serve in Congress, had not been a citizen for the required nine years. They reasoned that the 14th Amendment had overturned Dred Scott, the 1857 Supreme Court decision that denied citizenship to the descendants of enslaved African Americans, just two years earlier and that therefore he would not be eligible for another seven.
That argument failed. No one thought to challenge any other members on the ground that they were born to parents who were not citizens and who had not, under the law in place at the time, filed a declaration of intent to be naturalized.
Immigrants were not eligible to be naturalized until three years after that declaration was filed and until five years after they arrived in the United States. The process was not perfectly analogous to lawful permanent residency, but it was not so very different, either.
While the failure of anyone to bring such challenges does not dispositively resolve the original public meaning of Section One, it is powerful circumstantial evidence against the claim that the Amendment sought to constrict birthright citizenship as the Trump Administration claims.
President Donald J. Trump's 2025 Executive Order restricting birthright citizenship has prompted new interest in the interpretation of the Fourteenth Amendment's Citizenship Clause. This Essay analyzes an overlooked source of the original understanding of that Clause: the meaning of "citizen" when determining whether members-elect are qualified to serve in Congress. The U.S. Constitution requires that every member of Congress be a U.S. citizen, and further provides that each House "shall be the judge" of members' qualifications. Anyone is permitted to challenge a member-elect's qualifications to serve, and hundreds of such challenges have been brought over U.S. history. Accordingly, challenges to members-elect's citizenship--as well as the absence of such challenges--shed light on the original understanding of the Citizenship Clause.
Using a variety of archival sources, we have researched the ancestry of all 584 members of the Thirty-ninth (1865-67), Fortieth (1867-69), and Forty-first (1869-71) Congresses, and found more than a dozen whose citizenship would be suspect under President Trump's interpretation of the Citizenship Clause. Yet no one questioned these members' citizenship despite the contentious political environment that inspired frequent qualifications challenges on a variety of other grounds. This dog that didn't bark provides further evidence that the Trump administration's novel interpretation of the Citizenship Clause is inconsistent with the original understanding.
We conclude with an observation based on long hours of tedious research: Determining the status of immigrants arriving in the early nineteenth century--an era with few immigration records and minimal enforcement of existing state-based restrictions on immigration--is often impossible, and always onerous. The difficulty of the task alone is evidence that no one at the time of ratification could have seriously thought that U.S. citizenship turned on such questions.
As longtime readers may recall, I think the failure of the proverbial dog to bark is often probative of the meaning of legislative language, particularly when the legislative provisions are the subject of extensive debate. So, for instance, I continue to maintain that it is probative that not a single member of Congress (nor contemporaneous commentator) ever claimed that the Affordable Care Act provided for tax credits for the purchase of health insurance on federal exchanges (the Supreme Court's decision in King v. Burwell notwithstanding). With publication of the Frost-Eason paper I look forward to a renewed consideration of whether the dog that didn't bark is relevant in statutory interpretation.
From the Complaint in Amin v. Spiegel & Grau LLC (S.D.N.Y.), the passage from the essay in the book:
On September 14, 2020, in a footnote to President Donald Trump's unconscionable treatment of migrants, a nurse named Dawn Wooten, who worked at the Irwin County Detention Center in Ocilla, Georgia, filed a whistleblower complaint. She said that Dr. Mahendra Amin—the center's leading doctor who was not even a gynecologist—allegedly told nearly every woman who went to see him that she had to have a hysterectomy. Wooten referred to him as a "uterus collector."
Adding to this atrocity, Dr. Amin spoke no Spanish, and many of the vulnerable, detained women he violated spoke no English. The New York Times reported, "Both the reviewing doctors and all of the women interviewed by the Times raised concerns about whether Dr. Amin had adequately explained the procedures he performed or provided his patients with less invasive alternatives. Spanish-speaking women said a nurse who spoke Spanish was only sporadically present during their exams." They did not have the faintest idea what he was doing to them. Meanwhile, as an independent physician who was under contract with US Immigration and Customs Enforcement, this doctor was paid for each individual procedure that he executed.
The matter stems from a controversy over books with sexual content in the school library, and the parent's shouting that school board members "should be arrested."
From a decision by Judge Eleanor Ross (N.D. Ga.) in Reprieto v. Cherokee County School Dist., decided May 30 but just recently posted on Westlaw; the case is still pending:
Reprieto is an involved parent [of a CCSD student] who has attended numerous School Board meetings and participated in the public comment period multiple times. In 2022, Reprieto, as well as various other parents, grew increasingly concerned that children in CCSD schools were being exposed to books containing "adult subjects such as pornography" in CCSD libraries. Numerous parents raised the issue of "pornographic materials" during School Board meetings without satisfactory resolution.
On March 17, 2022, the School Board convened a public meeting, and "a number of concerned parents" signed up to speak about the CCSD library books. Plaintiff attended the meeting "in support" of those who had signed up to speak and "to let the Board know that she opposed obscene and pornographic materials being made available to minor children." However, the Complaint contains no allegation that Plaintiff herself signed up to speak.
As planned, during the meeting "numerous" parents made comments criticizing the School Board's inaction regarding certain books. One parent raised concerns about the book "Homegoing," and read the following section from it: "Excited now, he pushed into her. As she squeezed her eyes as tightly as she could, her tongue circled her lips. He pushed harder, his breath heavy and labored. She scratched his back and he cried out. She bit his ear and pulled his hair." Before the parent could finish speaking, School Board Member Jordan said, "Excuse me. We have children at home. And it's really not appropriate." The parent replied, "Don't you find the irony in that? You're saying exactly what I'm telling you! You're giving this to our children! I would never give this to children." School Board Chair Cromer said, "Out of order. Thank you." Reprieto replied, "That's the point!"
Later in the meeting, Cromer spoke to the seated audience about the CCSD library books. Video footage of the meeting portrays the following exchange as Cromer spoke and audience members, including Reprieto, who was seated in the fifth row, shouted from their seats.
Margolin v. National Association of Immigration Judges was not a typical emergency docket application. This was not a case where a district court judge entered a universal vacatur or ordered the executive branch to do something. Rather, the posture was a bit more mundane.
Here, the Fourth Circuit remanded a case, and instructed the district court to make "a factual record" about the Civil Service Reform Act. The executive branch objected to intrusive discovery.
To mitigate those destabilizing effects, the Solicitor General commits to filing a petition for a writ of certiorari seeking summary reversal in the coming weeks, and well in advance of the February 18, 2026 deadline. But to protect this Court's jurisdiction from being overtaken by events in district court, the Court should stay the court of appeals' mandate pending the filing and disposition of that petition and grant an administrative stay before the mandate issues. Only this Court can halt the ongoing and rapidly spreading uncertainty for countless cases.
It is not common for the Solicitor General to ask the Court to stay the mandate. And the Court would not grant that relief.
About eight days after the briefing concluded, the Court entered a short order:
The application for stay presented to The Chief Justice and by him referred to the Court is denied. At this stage, the Government has not demonstrated that it will suffer irreparable harm without a stay. This denial is without prejudice to a reapplication if the District Court commences discovery proceedings before the disposition of the Government's forthcoming petition for a writ of certiorari. Cf. Cheney v. United States Dist. Court for D.C., 542 U. S. 367, 385 (2004). The order heretofore entered by The Chief Justice is vacated.
This ruling was touted as a defeat for the Administration. But was it a loss? The Court offered a very specific admonition:
This denial is without prejudice to a reapplication if the District Court commences discovery proceedings before the disposition of the Government's forthcoming petition for a writ of certiorari.
If I am the District Court judge, I read this as saying "any discovery request will be stayed." So the Court basically granted the stay without granting the stay.
The introduction to today's long opinion by Judge Roger Benitez in Mirabelli v. Olson (S.D. Cal.):
Long before Horace Mann advocated in the 1840's for a system of common schools and compulsory education, parents have carried out their rights and responsibility to direct the general and medical care and religious upbringing of their child. "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder (1972). It is a right and a responsibility that parents still hold. Mahmoud v. Taylor (2025) (applying Yoder as "embod[ying] a principle of general applicability"). The role of a parent includes a duty to recognize symptoms of illness and to seek medical advice. Parham v. J.R. These rights are protected by the First and Fourteenth Amendments to the Constitution. Troxel v. Granville (2000) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."). Fortunately, the natural bonds of affection normally lead parents to act in the best interests of their child. Parham.
With these longstanding principles in mind, this case presents the following four questions about a parent's rights to information as against a public school's policy of secrecy when it comes to a student's gender identification. First, do parents have a right to gender information based on the Fourteenth Amendment's substantive due process clause? Second, do parents have a right to gender information protected by the First Amendment's free exercise of religion clause? Third, do religious public school teachers have a right to provide gender information to parents based on the First Amendment's free exercise clause? Fourth, do public school teachers have a right to communicate accurate gender information to parents based on the First Amendment free speech clause? In each case, this Court concludes that, as a matter of law, the answer is "yes." Parents have a right to receive gender information and teachers have a right to provide to parents accurate information about a child's gender identity.
From retired Third Circuit Judge Thomas Vanaskie (who had also served on the Middle District of Pennsylvania), and who was serving as a court-appointed Special Master in In re: Valsartan Losartan, and Irbesartan Products Liability Litigation; the decision was handed down Sept. 3, but just came up on one of my searches:
Dr. Sawyer's citation to non-existent sources due to his use of an artificial intelligence tool without adequate verification of the sources generated by the artificial intelligence tool, while perhaps warranting an award of costs in favor the defense and permitting cross examination of Dr. Sawyer during the trial on his failure to verify the sources cited in his report, does not warrant exclusion of his opinions as they are otherwise the product of reliable scientific methodology and are supported by "good grounds," especially given "the liberal thrust of the Federal Rules of Evidence, the flexible nature of the Daubert inquiry, and the proper roles of the judge and jury in evaluating the ultimate credibility of an expert's opinion" ….
The quotation about the liberal thrust, flexible nature, etc, of the Daubert inquiry is taken from Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999).
I don't have any particular opinion about what judges should do about AI hallucinations in expert reports, but I do want to express my continued frustration about judges (or in this case a retired judge serving as a special master) simply ignoring the text of Federal Rule of Evidence 702.
To make a long story short, the Heller quotation was of dubious merit in 1999, but quoting it in 2025 neglects the fact that while the Daubert case interpreted Rule 702 as it existed in 1993, since 1999 there have been two (count 'em, two) amendments to Rule 702. As a result, we know longer properly have "a Daubert inquiry," with whatever ambiguities or bows to the alleged liberality of the rules the case supplied, but a federal rule of evidence amended twice, in 2000 and again in 2023. Here is the rule: Rule 702.
Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
Note that the rule does not say anything about the test being flexible, liberal, or deferential to the jury. Indeed, the 2023 amendment added "demonstrates to the court" precisely to dissuade judges from believing that they can and should pass off the reliability issues to the jury under Rule 104(b) rather than making an initial judicial determination of admissibility under Rule 104(a).
Rule 702 as amended, not Daubert, not circuit precedent relying on Daubert, is the law of the land, and it's time for judges to start acting that way.
Below is an open letter to Heritage Foundation President Kevin Roberts from my Scalia Law colleague Nelson Lund:
After your shocking video pledging eternal friendship to Tucker Carlson, I thought that you and Heritage's Board of Trustees deserved some time to clean up the mess you made. The mass resignation of staff from the Meese Center has now made it clear that neither you nor the Board is likely to take appropriate steps to salvage the Foundation's reputation.
I have been involved in various ways with Heritage for several decades. I have frequently been asked to write on legal issues, and two of those solicited papers have received some academic attention. Perhaps most importantly, I have contributed multiple essays to all three editions of the Heritage Guide to the Constitution, and I was honored to serve on the Academic Advisory Board for the third edition.
In working with Josh Blackman and John Malcolm on the most recent edition, I saw first hand the extraordinary energy, intelligence, and integrity that produced what is undoubtedly the single finest resource for citizens and policymakers who are interested in the Constitution's original meaning.
The collapse of the Meese Center is especially offensive because of its effects on my friend and former student, Josh Blackman, who put so much of himself into raising the Guide to a new level of excellence. The insult to Attorney General Meese, whom I was very proud to serve at the Department of Justice, is perhaps even worse. He has done at least as much as anyone in our nation to initiate and shape the modern project of recovering the original Constitution. He deserved better from you and Heritage.
Fortunately, the achievements of Meese, Blackman, Malcolm, and many others who have worked with Heritage over the years will outlast and outshine you and the toxic cloud that you have created.
Nelson Lund
Distinguished University Professor
Antonin Scalia Law School
The lawsuit stems from Media Matters' claim that X's "content moderation policies permitted the placement of 'pro-Nazi' content next to advertisements for major brands."
From Friday's decision in Media Matters for America v. X Corp., decided by Ninth Circuit Judges Daniel Bress and Salvador Mendoza, and visiting Sixth Circuit Judge Danny Boggs:
Media Matters published an article claiming that X Corp.'s ("X") content moderation policies permitted the placement of "pro-Nazi" content next to advertisements for major brands. In response, X and its foreign subsidiaries sued Media Matters in three jurisdictions, including Ireland. After litigating for over a year in Ireland, Media Matters brought suit in the Northern District of California, invoking a forum selection clause in X's terms of service. The district court entered an anti-suit injunction that enjoined X from pursuing the Ireland litigation….
The parties dispute whether Media Matters has the right to enforce X's terms of service against X's foreign affiliates. But we conclude that even if Media Matters had such a right, it waived the right to exercise the forum selection clause in X's terms by actively litigating the Ireland case for over a year without raising the forum selection clause in either Ireland or the Northern District of California.
Last night, Kevin Roberts told the Heritage staff that two people would be directing the Meese Center. National Review reported:
The organization's president, Kevin Roberts, sent an email to staff Sunday evening informing them of the departures. "We wish them well, though the manner of their departures speaks volumes," he wrote. Roberts also told staff in the email that the organization's chief economist, EJ Antoni, will now serve as acting director of the organization's Center for Data Analysis and Thomas A. Roe Institute for Economic Policy Studies, and that policy expert Cully Stimson will now lead the organization's Meese Center for Legal and Judicial Studies on an "interim basis, with assistance from Hans von Spakovsky."
I just spoke with Cully, who told me that both he and Hans resigned from the Heritage Foundation. At this point, there are only a few people left at the Meese Center. It exists in name only.
