In the aftermath of the Supreme Court's ruling in Trump v. CASA, barring nationwide injunctions, most informed observers expected courts to instead certify broad class actions against Donald Trump's birthright citizenship executive order (which denies birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas). That's precisely what happened today.
Obviously, the administration will appeal the class certification and injunction, and the issue could well get back to the Supreme Court. Perhaps sooner rather than latter.
I am no class action expert. But, for what little it's worth, I think this class does meet the Rule 23 requirements of numerosity (the class has hundreds of thousands of members), commonality (the class members all have an obvious common interest in getting citizenship, thereby avoiding potential deportation), typicality (the class representatives litigating the case seem to be typical of the class as a whole), and adequacy of representation (the ACLU lawyers litigating the case seem more than adequate, as far as I can tell). But, again, I am no class action expert, so this opinion may not be worth much more than the money you're (not) paying to read it!
Even if this class action succeeds, I remain convinced that Trump v. CASAwas a bad decision. The class action certification remedy may not be so readily available in some other important cases involving large-scale illegality by federal, state, or local governments.
But assume I am wrong about that. Assume that class actions or some other comparably broad remedy will be feasible in every situation where a nationwide injunction might have been available before. In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name. If basically the same remedy is in fact available to same degree as before, I say it's better to just call a spade a spade, than to pretend your spade is actually a shovel.
Today's ruling, like the Supreme Court decision, does not address the substantive legality of Trump's order. This same district court had already ruled that the order is unconstitutional, and the Supreme Court's decision did not overturn that, but only addressed the issue of the scope of the available remedy.
For my explanations of why children of undocumented immigrants are constitutionally entitled to birthright citizenship and criticisms of some standard contrary arguments, see here and here.
UPDATE: Judge Laplante's opinion justifying the class action certification is available here. His analysis of the various class action factors strikes me as compelling. But, again, this is not my area of expertise.
[Voice-over actors] Paul Lehrman and Linnea Sage bring this putative class action against .. Lovo, Inc. … alleging that Lovo used artificial intelligence … to synthesize and sell unauthorized "clones" of their voices….
Ultimately the Court concludes that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law…. [But] claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [New York's right of publicity statute], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract….
After hearing what appeared to be Lehrman's voice on Deadline Strike Talk, Plaintiffs sought to learn more about Lovo. Lehrman found that Lovo "had been marketing [the clone of his voice] as part of its subscription service under the stage name 'Kyle Snow,'" and that it was this "Kyle Snow" voice that he had heard on the podcast…. Sage discovered that Lovo had created a clone of her voice named "Sally Coleman" that was available to Lovo's subscribers. Lovo also marketed its product using "side-by-side" comparisons of Sage's original audio recordings … and the "cloned version of her voice." …
From Uzamere v. Trump, decided Monday by Judge Timothy Kelly (D.D.C.):
Over 201 paragraphs and 95 pages of the original complaint, Plaintiff purports to challenge Executive Orders 13899 and 14188 [the ones related to "Combating Anti-Semitism" -EV] on the ground that they "violate the Establishment Clause [of the First Amendment to the United States Constitution] that prohibits the government from establishing a religion; and the Free Exercise Clause, that protects individuals' right to practice their religion … as they choose."
Plaintiff, "an adherent of the Jehovah's Christian Witnesses sect," alleges the Executive Orders are "designed to subject individuals who engage in disseminating information regarding members of Jewish leadership who engage in unconstitutional, tortious or criminal acts that are permitted by the Babylonian Talmud to be subject to Jewish leadership's interference with commerce by threats, violence and other tortious and criminal offenses."
But Justice Clarence Thomas wrote a strong dissent to the denial, joined by Justice Gorsuch. Here is an excerpt:
I would grant review of the question whether a policy barring landlords from evicting tenants for the nonpayment of rent effects a physical taking under the Takings Clause.
This question is the subject of an acknowledged Circuit split. The Eighth and Federal Circuits have held that a bar on evictions for the nonpayment of rent qualifies as a physical taking, while the Ninth Circuit has held that it does not….
This Circuit split stems from confusion about how to reconcile two of our precedents. The Ninth Circuit treated as controlling this Court's decision in Yee v. Escondido, 503 U. S. 519 (1992), which held that a statute did not effect a physical taking when it allowed mobile home owners to evict tenants only after an onerous delay….
By contrast, the Eighth and Federal Circuits looked to our more recent decision in Cedar Point Nursery v. Hassid, 594 U. S. 139 (2021). There, we held that a law requiring agricultural employers to allow labor organizers onto their property constituted a physical taking because it "appropriate[d] for the enjoyment of third parties the owners' right to exclude." Id., at 149. And, the Eighth and Federal Circuits reasoned, if "forcing property owners to occasionally let union organizers on their property infringes their right to exclude," it follows that "forcing them to house non-rent-paying tenants (by removing their ability to evict)" does too….
Because "[w]e created this confusion," we have an obligation to fix it. Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from denial of certiorari). That obligation is particularly strong here, as there is good reason to think that the Ninth Circuit erred. Under the logic of Cedar Point, and our Takings Clause doctrine more generally, an eviction moratorium would plainly seem to interfere with a landlord's right to exclude. See Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 765 (2021) (per curiam) ("[P]reventing [landlords] from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude"). Nor does Yee dictate otherwise: Although the statute there constrained landlords' right to evict, it was not "an outright prohibition on evictions for nonpayment of rent." Darby, 112 F. 4th, at 1035…
Finally, this issue is important and recurring. Given the sheer number of landlords and tenants, any eviction-moratorium statute stands to affect countless parties. And, the end of the COVID–19 pandemic has not diminished the importance of this issue. Municipalities continue to enact eviction moratoria in the wake of other emergencies.
I think Thomas is right on virtually all points here. I would add the split in the lower courts extends not only to federal circuit courts, but also to state supreme courts. In 2023, the Washington Supreme Court upheld an eviction moratorium in Gonzales v. Inslee. While the ruling was based on the state constitution, the court also held there was no taking under the federal standard for physical takings. I criticized the Washington ruling in my contribution to a December 2023 Brennan Center symposium:
In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled in 2021 that even temporary mandated physical occupations of privately owned land qualify as "per se" (automatic) takings under the Takings Clause of the Fifth Amendment. Gonzales only addresses claims under Article I, Section 16 of the Washington Constitution. But the state supreme court ruled that eviction moratoriums are not covered by the per se rule, even assuming it applies to Section 16. The justices reasoned the eviction moratorium was merely a "regulation" of a preexisting "voluntary relationship" between tenants and owners. They ignored the obvious point that, in the absence of the "regulation," the tenants would have no right to remain on the owners' land. Thus, an eviction moratorium undeniably does mandate a physical occupation of property.
The court's reasoning — which may be copied by other state and federal courts — has implications that go beyond eviction moratoriums (though those are significant in themselves). If there is no takings liability for physical occupations linked to "voluntary relationships," then there is no taking when conservative states require businesses and employers to allow employees and customers to bring guns onto their property, or when they enact laws barring employers from excluding workers who refuse to get vaccinated for Covid-19 or other contagious diseases.
While eviction moratoriums may seem like beneficial regulations, their effect is to raise the cost of housing and reduce its availability. Evidence indicates they did little to help the poor or to curb the spread of Covid during the pandemic.
See also my analysis of last year's Federal Circuit decision in Darby Development Co. v. United States, which went the other way. Thomas cites Darby in his discussion of the circuit split, quoted above.
I have my issues with Thomas's jurisprudence on a number of other fronts. But he is one of the best current justices on takings issues. I hope the Court eventually listens to him on this one. Eviction moratoria are clearly takings, and jurisdictions that impose them must pay compensation.
The Data Colada Defendants request sanctions based on Gino's defamation claims, which alleged that the Defendants falsely accused her of data fabrication in four academic studies. Gino's suit followed an investigation by Harvard University, which concluded that the data in the studies were altered in ways that aligned with the authors' hypotheses. The investigation relied on forensic analysis and original datasets. In response, Gino alleged that she was unfairly targeted by a campaign of harassment orchestrated by the Defendants in coordination with Harvard.
Gino's own admissions during the Harvard investigation—including her acknowledgment that the posted datasets were inconsistent with originals, and her concession that she had no explanation for the discrepancies—undermine the premise of her later-filed defamation complaint. As the Defendants correctly note, it is not defamation to publish statements that are true or substantially true. In their motion, the Defendants provide extensive excerpts from the Harvard report and Gino's responses that show she acknowledged the presence of data alteration, even if she denied responsibility for it. Plaintiff's opposition does not meaningfully rebut the central facts. Rather, it attempts to relitigate the credibility of the Harvard investigation and the intentions of the Defendants.
Still, while it is true that federal courts possess inherent power to sanction bad-faith conduct, it is also true that that power must be exercised with restraint and only where it is clear a party has acted in bad faith, vexatiously, or for oppressive reasons. Here, Gino's defamation claims against the Data Colada Defendants were weak indeed; however, that does not necessarily equate to bad faith, vexatious, or oppressive….
A short excerpt from today's long Braid v. Stilley, written by Seventh Circuit Judge Michael Scudder and joined by Chief Judge Diane Sykes and Judge Thomas Kirsch:
In September 2021 Dr. Alan Braid, a Texas OB/GYN, wrote an editorial in the Washington Post admitting he performed an abortion in violation of the Texas Heartbeat Act. Three individuals from three different states reacted by each invoking the citizen-suit enforcement provision of the Texas Heartbeat Act and seeking to recover at least $10,000 in statutory damages.
Now facing the prospect of duplicative liability, Dr. Braid made use of the federal interpleader statute, 28 U.S.C. § 1335, to join the claimants in a single suit. But, in an odd twist, he did not do so by going to any Texas federal court but instead by filing suit in federal court in Chicago. In addition to his interpleader claim, Dr. Braid sought declaratory relief, urging the district court to declare the Texas Heartbeat Act unconstitutional.
The district court dismissed Dr. Braid's entire suit, concluding that the existence of parallel state-court proceedings justified abstention under the Supreme Court's Wilton-Brillhart doctrine. Though we chart a different course of reasoning, we ultimately reach the same end point and therefore affirm the dismissal of Dr. Braid's federal case….
Like the district court, the parties, too, recognize that this case is far from an ordinary interpleader case which follows a similar and well-known pattern: "a neutral stakeholder, usually an insurance company or a bank," sues in federal court to force "all the claimants" to the policy or fund "to litigate their claims in a single action brought by the stakeholder." Congress originally limited our jurisdiction to this narrow set of claims, specifying that statutory interpleader applied only to actions brought by "any insurance company or fraternal beneficiary society."
American courts often rightly do consider foreign law and foreign judgments, because American law calls on them to do that; and it would generally be senseless for American law to categorically block American courts from doing that.
That sometimes includes the judgments of religious courts, and judgments of foreign courts applying religious law that is part of the foreign legal system.
In some situations, American courts should refuse to apply foreign or religious law, or enforce the judgments of foreign or religious courts—but existing American law already has the tools needed for that.
Here's a recent illustration of this (especially item 3) from CSHK Dubai Contracting LLC v. Ali, decided last week by a Texas Court of Appeals (opinion by Justice Dana Womack, joined by Justices Elizabeth Kerr and Dabney Bassel):
Plaintiffs' Motion to Permit Remote Trial Testimony of Expert Witness … states that their expert has been hospitalized for heart problems and is under strict doctor's orders not to travel. Plaintiffs submit a sworn affidavit in support of their Motion…. Defendant indicated that he would leave the determination up to the undersigned. Thus, the Court assumes he is unopposed. Accordingly, the Court finds it appropriate to GRANT Plaintiffs' Motion under these extenuating circumstances.
The Court notes that due to the age of the Courthouse, and the general policies in the Fort Worth Division, remote testimony has only ever been attempted once before by the Court—under similarly appropriate circumstances. That attempt was unsuccessful and as a result the Court was forced to strike the witness. Thus, the Court highly recommends that Plaintiffs contact the Court IT as soon as possible.
It's an obvious abuse of emergency powers, a claim to unconstitutional delegation of legislative power, and a threat to the economy and the rule of law.
Earlier today, President Donald Trump announced he intends to impose 50% tariffs on imports from Brazil, citing that country's prosecution of former President Jair Bolsonaro, for the latter's attempt to stage a coup to keep himself in power after losing an election. Bolsonaro is a political ally of Trump's. The incident highlights the illegal and dangerous nature of Trump's tariff policy.
The administration has not made clear what law they will use to impose the Brazil tariffs. But reporters tell me officials have indicated Trump will use the International Emergency Economic Powers Act of 1977 (IEEPA), which is also the statute at issue in the lawsuit against Trump's "Liberation Day" tariffs, filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by this massive trade war.
The Brazil situation exemplifies why Trump's use of IEEPA is illegal and harmful. Brazil's prosecution of Bolsonaro is pretty obviously not an "emergency" or an "unusual and extraordinary threat" to the US economy or national security. Both of these conditions are required to invoke IEEPA. This situation just underscores the danger of allowing the president to define those terms however he wants, without any judicial review, as the administration claims he can.
The Brazil tariffs are even more indefensible than Trump's other IEEPA tariffs. In addition to the Bolsonaro prosecution, Trump's letter announcing the new tariffs cites that country's supposedly unfair trade policies. But the US actually has a substantial trade surplus with Brazil, of some $7.4 billion per year, according to the office of the US Trade Representative. In combination with Brazil's retaliatory tariffs, Trump's massive new tariffs against that country will predictably harm consumers and businesses in both countries, for little if any gain.
If the president can use IEEPA to impose tariffs for completely ridiculous reasons like these, he can use it to impose them against any nation for any reason. That reinforces our argument that the administration's interpretation of IEEPA leads to a boundless and unconstitutional delegation of legislative power to the executive. A unanimous ruling in our favor by the US Court of International Trade concluded that IEEPA "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." I hope appellate courts will reach the same conclusions.
The president's attempt to use tariff policy to punish Brazil for prosecuting one of his political allies underscores the threat that unlimited executive tariff authority poses to the rule of law. Tariff policy - like other significant economic policies - should be based on clear, stable rules that do not vary based on the whims of any one person, and cannot be used to punish the president's political enemies or reward his allies. Trump's tariff power grab is a huge step towards replacing the rule of law in trade policy with the unilateral rule of one man. That's yet another reason why courts should strike it down.
From last week's decision in Ziade v. Abdullah by the Nevada Court of Appeals (Chief Judge Bonnie Bulla and Judges Michael Gibbons and Deborah Westbrook)
Ziade, a Las Vegas resident, and … Abdullah, a Canadian citizen residing in California, were in a long distance online relationship for approximately five months before Abdullah relocated to Las Vegas. During the relationship, Ziade provided Abdullah with funds that she represented would be used to pay for legal representation to obtain a restraining order against her abusive ex-boyfriend, and to pay for hospital bills.
On August 6, 2021—shortly after Abdullah arrived in Las Vegas—she filed a police report that alleged Ziade sexually assaulted her on multiple occasions while visiting her in her hotel room. However, the responding officer indicated in the police report that Abdullah declined to press charges, and that she refused to submit to a Sexual Assault Nurse Examination exam at the time of the report. Soon after Abdullah moved in with Ziade.
The relationship quickly deteriorated. On August 27, both parties reported a domestic disturbance at Ziade's home. Ziade called the police non-emergency line and reported that Abdullah locked herself in her bedroom and was refusing to leave his home after a discussion wherein Abdullah was "crying and yelling because [he] was not showing her the attention she wanted."
After leaving the home, Abdullah called 9-1-1 and later reported to the officers responding to her call that Ziade had committed an act of domestic violence on her person by shoving her down the stairs, grabbing her by the shoulders and dragging her by the hair toward the front door. The accompanying police report reflects that Abdullah refused to show the responding officers her injuries at the scene and that they "could not substantiate that a battery occurred." Abdullah presented to the hospital the next day with bruising on her left collarbone.
As a result of the August 27 police report and related follow-up interviews, Ziade was charged with misdemeanor domestic violence. Although Ziade denied the allegations made against him, he apparently agreed to take anger management courses in exchange for a dismissal of the misdemeanor charge.
Pecos River Talc LLC … sued defendants, Drs. Theresa Emory, John Maddox, and Richard Kradin, alleging that certain statements they made in an article published in a scientific journal about cosmetic talc, asbestos, and malignant mesothelioma were false. The Court granted in part and denied in part defendants' motion to dismiss [see here -EV], allowing the case to proceed on the trade libel claim (count one).
Pending before the Court is Pecos River's motion to compel the identities of the article's subjects…. [T]he Court … [concludes that] the names of the subjects in the article are within the scope of discovery….
Pecos River was formed as part of Johnson & Johnson's effort to resolve talc-related claims through bankruptcy. Defendants … serve as plaintiff-side expert witnesses in litigation between individuals with mesothelioma and manufacturers of cosmetic talc. In March 2020, defendants published an article titled "Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients" in the American Journal of Industrial Medicine (the "article"). The article stated that it "present[s] 75 … subjects, with malignant mesothelioma, whose only known exposure to asbestos was cosmetic talc[,]" who were "additional" to the 33 subjects reported in an earlier study by Dr. Jacqueline Moline ….
Defendants identified and selected the 75 subjects "from medical-legal consultation practice." To determine asbestos exposures, defendants relied on records obtained when they served as expert witnesses for asbestos plaintiffs—many times in cases against Pecos River—and examined "sworn deposition testimonies and answers to sworn interrogatories provided from subjects, parents, and spouses." Tissue samples were tested for the presence of asbestiform fibers in nine subjects.
Next year is the 100th anniversary of Village of Euclid v. Ambler Realty, the Supreme Court decision upholding exclusionary zoning. I think Euclid is one of the worst supreme Court decisions ever, and exclusionary zoning - and the resulting massive housing shortage of which it is the biggest cause - is the biggest property rights issue of our time. In a recent article, In a recent Texas Law Review article, Josh Braver and i argue that exclusionary zoning violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them. See also our much shorter non-academic article in the Atlantic.
Even many who don't agree with that position can recognize now is a good time to reconsider Euclid and its legacy. Thus, I am happy to announce that the Pacific Legal Foundation - a major public interest law firm specializing in property rights issues - is sponsoring a symposium on the 100th anniversary of Euclid, and soliciting proposals. They are organizing it together with the Mercatus Center and the Journal of Law, Economics, and Policy. Here is the announcement:
Next year marks the 100th anniversary of the U.S. Supreme Court's decision in Euclid v. Ambler Realty Co., where the Court approved of municipalities' use of their "police powers" to enact zoning ordinances excluding lawful activities from certain districts and segregating residential housing based on the housing's effects on neighboring properties. The effects of Euclid have been pervasive, since virtually all American cities and towns divide themselves into land-use districts through these public-welfare zoning ordinances.
In Euclid, land that an owner had intended to sell for industrial purposes was rezoned for residential use by a Cleveland suburb, resulting in an alleged decrease in land value of approximately 75 percent. The Court's decision provided an unqualified endorsement of the practice of land-use regulation under the government's police powers using a creative application of nuisance principles. The Court noted that "a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard," and, going beyond the facts of the case, singled-out apartment buildings as "parasites" amidst neighborhoods of "private" family homes.
For the past 100 years, scholars have debated Euclid's effect on housing in America and the resulting tension between states' police power protection of public welfare and constitutional property rights, due process, and equal protection. The approaching 100th anniversary of the Court's decision presents a new opportunity to take a fresh look at the decision, its significance, and legacy, and particularly what a new American land-use and zoning paradigm might look like for the next 100 years.
It's also a fitting time to assess the economic impact of zoning, how state and federal environmental regulations have contributed to driving up the costs of building, and what the future may hold for land-use regulation. Pacific Legal Foundation, the Mercatus Center, and the Journal of Law, Economics & Policy seek papers from a variety of disciplines building on the past 100 years of research and commentary to re-evaluate the foundations of American zoning and look toward the future.
Some additional details:
Authors of accepted papers will receive a $4,000honorarium.
Papers will be presented at a symposium at George Mason University Antonin Scalia Law School in early 2026.
Cost of hotel accommodation and reasonable travel expenses to the symposium will be covered.
Papers will be published in the Spring 2026 issue of the Journal of Law, Economics & Policy.
Instructions on how to submit are available here. The submission deadline is August 15.
Here is the organizers' list of suggested topics:
POSSIBLE TOPICS
The following are possible topics of potential research papers and are not intended to be an exclusive or exhaustive list.
How should Euclid be interpreted and what is its legacy in light of the pervasive racially-discriminatory use of zoning over the decades after Euclid?
Did the Supreme Court expand state police powers in Euclid beyond their constitutional limit? If Euclid were to be reexamined today, would the Court's former holding stand up to review under the Court's reinvigorated history-and-tradition analysis?
Writers from the 1920s optimistically imagined that zoning as it was initially conceived might suffice to carry American cities forward for 100 years. Looking past Euclid and thinking broadly, what might a new land-use paradigm for American cities look like for the next century?
What has been Euclid's relationship with or contribution to America's housing crisis and how could its effects be remediated?
Should Euclid, which had been initially interpreted narrowly by some state courts, have been construed differently in light of the subsequent Nectow v. City of Cambridge case and later land-use jurisprudence?
What should be the future of Euclid on federal and state regulatory takings jurisprudence, given the arguments presented in articles like, "The Constitutional Case Against Exclusionary Zoning" by Ilya Somin and Joshua Braver?
What legislative options for zoning reform could supersede the holding in Euclid, particularly in light of bills introduced and/or passed at the state and federal levels in recent years?
Considering examples from other countries with different zoning systems, as discussed in Sonia Hirt's book, Zoned in the USA, should the United States consider a more limited form of zoning, and what might that look like?
Relatively little scholarly attention has been paid to the zoning enabling acts, which largely derived from the federal Standard State Zoning Enabling Act. What is the current status of these acts, the substance of which predates the Euclid decision, and what are some potential reforms and/or alternatives.
Since this is a PLF event, I must make the standard disclaimer that my wife is a PLF employee. However, she is not involved in the organization of this symposium, nor in the evaluation of paper proposals. Nor am I! So don't send your proposals to me (or her). Send them to Stephen Davis of PLF and Andrew Cannon (JLEP), as instructed at the website linked above.
I suppose I should also add that it was not my idea to make the issues raised in my article with Josh Braver one of the possible suggested paper topics. I didn't even know about this symposium until PLF announced it, and asked me to help promote (which I am happy to do). Conspiracy theorists won't believe it (though Volokh Conspiracy theorists might!), but it's true.
Regardless, this is a hugely important set of issues, and I hope and expect the symposium will be a success.
From Thomas Starkie's 1813 libel law treatise, pp. 199-200 (some paragraph breaks added):
Were every malicious and oppressive act to be considered illegal, the law would be very agreeable to the theorist, but utterly unfit for the practical purposes of society, on account of the infinite perplexity and uncertainty which would occur in distinguishing between bad and good motives, where the act done might arise from either source.
The secret purpose of a man's heart is of too difficult ascertainment to be made the general criterion of legal right or wrong; and hence it is that the law, which must resort to more plain and certain evidence, on which it may found more precise prescriptions, may not unfrequently become the instrument of oppression.
For example: where a creditor, from motives of malice and revenge, and not with a view to his legal remedy, deprives his debtor of liberty; as a matter of conscience the act is criminal and unjustifiable; yet it must be sanctioned and tolerated by the law, in order to avoid consequences most pernicious and absurd; for were it otherwise, a man's security for his debt would depend on the temper and disposition of his mind, upon his motive for becoming a creditor in the first instance, and his reasons for enforcing his claim in the second; and, however pure his intention, he might be deterred from proceeding, by the apprehension of being involved in litigation, upon a suggestion of malice, by his adversary.
This morning, at 11:00 ET, I spoke at the "Scholars and Scribes" Supreme Court Roundup at the Heritage Foundation. And this evening, at 6:00 CT, I spoke at the Houston Federalist Society's Supreme Court Roundup. It has been some time since I did two events in two cities in the same day. (Back in 2012, I visited six airports in thirty-six hours.) Today's travel was not easy to execute.
The event at Heritage wrapped at 12:15. Approximately one minute later, I was in a waiting Uber, en route to Reagan National Airport. I placed the suitcase next to me to avoid having to waste time going to the trunk. Boarding for my flight began at 12:25, as I was crossing the Fourteenth Street Bridge. I arrived at the curb of Terminal 2 at 12:31. I made it through security and to my gate in about six minutes. I scanned my boarding pass at 12:38, just after they called my name before closing the boarding. I was in my seat by 12:40. I landed in Houston around 3:00, with plenty of time to spare before the evening event.
Why did I engage in this insane turnaround? As it turned out, today there were thunderstorms in both D.C. and Houston. (Summer travel is actually worse than winter travel, as airports can remain operational during snow, but not during lightning.) Looking at the radar, I realized there was a good chance that my original flight, which was slated to leave D.C. at 3 ET and land in Houston at 5 CT, would be delayed. So I called an audible and switched to the earlier flight. I would rather rush to the airport to try to catch the earlier flight. If I had missed it, I would just wait for the later flight.
As things turned out, my prediction was correct. My original flight would be delayed about two hours, and I would have missed most of the FedSoc event in Houston.
This may sound obsessive, but whenever I travel, I track the weather in both my departing and arriving city, and also keep an eye on all flights between those airports that day in case I can switch. I also track the inbound flights (that is, where my flight is coming from), and the weather in that city. And in rare cases, I will track the weather in the inbound's inbound city. I was recently flying from LaGuardia to Dulles, and by tracking three flights ahead, realized my late-night flight would likely get cancelled, so I switched to Amtrak and taxi'd to Penn Station. It is very, very rare that I am on a cancelled flight, in large part because I am proactive about getting off those flights. As Gary Leff from View from the Wing explains, inclement weather is like the Zombie Apocalypse--you have to keep moving.
You can watch the Scholars and Scribes event here:
Yesterday, the Liberty Justice Center and I filed our appellate briefVOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs on behalf of five small businesses. We are working with Neal Katyal and Michael McConnell, both leading constitutional law scholars and appellate litigators. The case is before the US Court of Appeals for the Federal Circuit, consolidated with a related case filed by 12 state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade. The key issue, as before, is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We contend IEEPA grants no such authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.
Yesterday was also the deadline for amicus briefs filed in support of our side. This post is an overview of some of the most notable ones. The bottom line is that rarely has a case attracted such a broad and impressive range of amici from across the political spectrum, and different sectors of the economy and civil society. Many of the briefs also make important points. By contrast, there are only two amicus briefs supporting the government, both filed by divisions of Stephen Miller's right-wing nationalist America First organization.
There are a total of eighteen briefs backing our position, so I can only comment on a few aspects of them. I have included links, so interested readers can get more detail from the briefs themselves.
Advancing American Freedom, et al.: AAF is a conservative organization founded by former Vice President Mike Pence. Together with them on the brief are several other consevative and libertarian groups, including the Independent Institute and the Mountain States Policy Center. The brief focuses on why the government's interpretation of IEEPA violates constitutional nondelegation constraints on the transfer of legislative power to the executive. It is particularly strong on the original meaning.
George Allen, et al.: This brief is on behalf of a bipartisan group of prominent legal scholars and former government officials. The legal scholars include Harold Koh (Yale), Richard Epstein (NYU), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Epstein is probably the world's most prominent libertarian legal academic, while Koh is a prominent left-liberal scholar known for his work on national security law. There are few, if any, other constitutional cases where both of them join the same amicus brief! The ex-government officials former Republican Attorney General Michael Mukasey, former GOP Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more. The brief especially focuses on the argument that IEEPA doesn't authorize tariffs, and that there is no genuine "emergency" here.
Brennan Center for Justice (NYU): The Brennan Center is a leading left-liberal research institute focusing legal issues. Among the co-authors is Elizabeth Goitein and Katherine Yon Ebright. Goitein is one of the nation's leading experts on emergency powers, and the brief gives a compelling explanation of why trade deficits do not qualify as an "emergency" or an "unusual and extraordinary threat" (both are necessary to invoke IEEPA). For those keeping track, Goitein also opposed President Biden's abuse of emergency powers in the student loan case, as did I.
Burlap and Barrel: This brief is on behalf of one the many thousands of businesses severely harmed by the tariffs. It's a great illustration of why protectionism makes no economic sense. Burlap and Barrel imports spices, many of which are difficult or impossible to produce in the US. Imposing tariffs on their products harms American consumers and businesses, for little if any gain to anyone else. Several of our own clients are in the same positions, include lead plaintiff VOS Selections, which imports wine; the wine they import, in many cases, simply cannot be produced in the US, given differences in climate and soil.
Cato Institute: Cato is the nation's leading libertarian think tank, and their brief focuses on the constitutional nondelegation issue, providing a strong overview of the relevant history and original meaning. In addition to my main job as a law professor at George Mason University, I am the Simon Chair in Constitutional Studies at Cato. But I had no role in writing the brief.
Consumer Watchdog: This group promotes consumer interests. The brief is co-authored by prominent legal scholar Alan Morrison (George Washington Univ.), who is a separation of powers expert. The brief focuses on nondelegation, and is notable for its analysis of how the Supreme Court's recent decision in FCC v. Consumers' Research bolsters our case on that issue.
Crutchfield Corp.: Crutchfield is another business severely harmed by the tariffs. They sell consumer electronics products.
Economists: This brief is on behalf of a large group of prominent economists spanning the political spectrum. They include 2024 Nobel Prize winner Daron Acemoglu, Gregory Mankiw (Harvard, former Chair of the Council of Economic Advisers under George W. Bush), Jason Furman (CEA chair under Barack Obama), Kimberley Clausing (UCLA, leading expert on international economic policy), and many more. The brief represents the consensus view of the economics profession, and explains why trade deficits are not an "emergency" or an "unusual and extraordinary threat" of the kind needed to trigger IEEPA. It also describes why the massive Liberation Day tariffs are a major policy issue triggering application of the major questions doctrine. The brief was drafted by a team led by big-name appellate litigator Adam Unikowsky.
Former Government Officials & Legal Scholars: This brief, on behalf of a group of mostly Republican former government officials, is coauthored by well-known legal scholar Mark Lemley (Stanford). Signatories include former Massachusetts Gov. Bill Weld, Peter Keisler, several former members of Congress, and Ty Cobb - former special counsel to President Trump (not to be confused with the baseball Hall of Famer of the same name).
Goldwater Institute and Dallas Market Center: Goldwater is a libertarian-leaning public interest law group. Their brief focuses on the nondelegation doctrine, and is particularly strong on the history and original meaning, showing how the Trump tariffs replicate abuses perpetrated by 17th century British monarchs whose imposition of taxes without congressional authorization set dangerous precedents the Founding Fathers sought to avoid replicating.
191 Members of Congress: This brief is on behalf of 161 Democratic members of the House and 30 Democratic Senators, including both the House and Senate minority leaders. The principal authors - Georgetown law Prof. Jennifer Hillman and Peter Harrell, were among those who first developed the idea of challenging the IEEPA tariffs using the major questions and nondelegation doctrines. The brief does an excellent job of presenting these and related points.
New Civil Liberties Alliance: NCLA is a conservative public interest law group, which filed the first case challenging the IEEPA tariffs (albeit limited to those focused on China). Their brief explains why IEEPA does not authorize tariffs, and should not be interpreted as granting that power merely because the predecessor Trading With the Enemy Act might have done so.
NYU School of Law Institute for Policy Integrity: IPI is a research institute focused on administrative law. Professor Richard L. Revesz (NYU), the principal author is a leading expert on administrative law and regulation. The brief is a thorough and compelling discussion of why Trump's use of IEEPA to impose massive tariffs runs afoul of the major questions doctrine.
Peter Sage: Mr. Sage is a retiree harmed by the tariffs, primarily in his capacity as a consumer.
Princess Awesome, et al (Pacific Legal Foundation): PLF is a leading libertarian public interest law firm, and they filed this case on behalf of their clients in Princess Awesome v. CBP- a case challenging Trump's tariffs similar to our own. The brief is notable for its compelling analysis of different variants of nondelegation doctrine. PLF is also my wife's employer; but she is not one of the authors of the brief, nor is she working on their tarif case.
Protect Democracy Project: This brief focuses on the abuse of emergency powers, and why emergency powers issues are subject to judicial review. PDP is a bipartisan group focused on constraining abuses of executive power.
US Chamber of Commerce & Consumer Technology Association: Many have asked me why major business organizations weren't supporting our case. Well, the Chamber of Commerce - the nation's biggest business federation - decided to step up! Their brief explains why IEEPA doesn't grant tariff authority, and outlines the grave harm Trump's trade war inflicts on the business community, and the American economy generally.
Vikram Amar & Mickey Edwards: Amar is a prominent constitutional law scholar, and Edwards is a former Republican member of Congress. Their brief emphasizes that delegations of legislative power to the executive should be narrowly construed, because the president's veto power makes them difficult to "retrieve" after the fact, creating a dangerous "one-way ratchet."
There were only two amicus briefs supporting the government, generated by different divisions of America First:
America First Policy Institute: This one makes the weak argument that all of Trump's tariffs are authorized by Section 338 of the Smoot-Hawley Tariff Act of 1930. The Trump Administration chose not to rely on this claim, and for good reason.
Katherine Yon Ebright and Leah Tulin of the Brennan Center make the case against judicial deference to Trump's invocation of the Alien Enemies Act of 1798.
A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)
Last month, Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, and I submitted an amicus brief in the Fifth Circuit case of W.M.M. v. Trump, opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. Katherine is a leading expert on the AEA and its history. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself.
Our brief was favorably cited by Fifth Circuit Judge Leslie Southwick in last week's oral argument in the case. Katherine and Leah have written this guest post addressing some key issues raised in the argument, and the AEA litigation more generally. I agree with virtually all their points! But what follows in the block quote is their work, not mine:
Last Monday, the Fifth Circuit heard oral argument in W.M.M. v. Trump, the first Alien Enemies Act challenge to make it to a circuit court in (somewhat) regular order rather than on an emergency motion. Among the issues raised in the case — which finds its way to the Fifth Circuit at the Supreme Court's direction rather than on a standard appeal — is the propriety of President Trump's invocation of the 1798 law to deport scores of immigrants he alleges are members of Tren de Aragua, a Venezuelan gang. As oral argument made clear, a central question is whether the judiciary may second-guess the president's determination that an "invasion" or "predatory incursion," a prerequisite for the law's use, is ongoing.
The Alien Enemies Act is a wartime law that affords the president tremendous regulatory, detention, and deportation power over noncitizens from hostile nations. It can be invoked when Congress declares war or when a "foreign nation or government" has perpetrated or threatened an "invasion" or "predatory incursion" against U.S. territory. On March 15, the president proclaimed that Tren de Aragua had perpetrated such an attack by facilitating unlawful migration and committing drug trafficking and other crimes. He referred to these acts as "irregular warfare" and attributed the gang's activities to the nation of Venezuela, which he called a "hybrid criminal state."
Common sense, of course, tells us that the nation is not being invaded by Venezuela and that gang violence, while a serious issue, is not war. Moreover, top administration officials, ranging from the CIA Director to the Chairman of the Joint Chiefs, have repeatedly told Congress the same thing.
No matter. In the Fifth Circuit, the government is arguing that the courts "must defer" to the president's proclamation, even if they disagree that an invasion or predatory incursion is underway. These matters, the government contends, are so heavily infused with political judgment that the courts are powerless to intervene.
The "political question doctrine" and other judicial deference doctrines have often precluded the courts' intervention in cases involving sensitive foreign policy and national security judgments. To that end, the Fifth Circuit judges expressed uncertainty about the permissible scope of review. Judge Oldham, in particular, asked whether any Supreme Court opinion supported the authority of the courts to "countermand the president of the United States in his determination regarding armed conflict" or to second-guess a chief executive, whether the president or a governor, in his identification of "an insurrection, an invasion," or other such events.
Petitioners' counsel, Lee Gelernt of the ACLU, rightly responded that the Supreme Court has repeatedly and specifically said that the judiciary may evaluate whether the Alien Enemies Act is properly invoked. Gelernt also discussed the Court'scases regarding law-of-war detention at Guantanamo Bay, in which the judiciary has carved out for itself a role in assessing whether detainees are in fact enemy combatants.
Beyond these examples, there is another line of cases that affirms the courts' power to overturn executive decision-making in sensitive matters of war, peace, and public safety. That caselaw begins with Sterling v. Constantin, a 1932 case in which the Supreme Court rejected a Texas governor's imposition of martial law. While acknowledging that the governor had broad discretion to proclaim an "insurrection" as "chief executive officer of the state and commander in chief of its military forces," the Court ruled that the governor's proclamation exceeded his authority. Because there was "never any actual riot, tumult, or insurrection" in reality, the governor's imposition of martial law fell beyond the "permitted range of honest judgment" an executive has for carrying out his constitutional obligation to faithfully execute the law.
Since 1932, Sterling's "permitted range of honest judgment" rule has been applied rarely but with great consequence. As those following the Alien Enemies Act invocation may know, the law was last used in World War II to intern 31,000 noncitizens of Japanese, German, and Italian descent. Several months after the United States entered the war, the Alien Enemies Act was complemented and quickly overshadowed by Executive Order 9066 — the authority used to incarcerate more than 120,000 Japanese Americans, including tens of thousands of U.S. citizens, on the West Coast. Applying the rule in Sterling, the courts prevented this second authority from being applied to German Americans on the East Coast.
In Schueller v. Drum and Ebel v. Drum, courts rejected claims of military necessity made by General Drum of Eastern Defense Command, who sought to apply Executive Order 9066 to target German Americans in Pennsylvania and Massachusetts. The judge in Schueller observed, "The normal civilian life of the area was being pursued . . . and it could not be honestly said that ordinary law did not adequately secure public safety." The military could not use an exceptional wartime authority — even one signed by the president and backed by the Congress — to dislodge constitutional rights when no "exigency of war" existed in fact.
Schueller and Ebel were decided in 1943, at a time of immense concern and uncertainty regarding the national security. They stood in stark contrast to the reflexive judicial deference on display in Korematsu v. United States, the 1944 Supreme Court case upholding Japanese incarceration on the West Coast that has since been rightly and roundly condemned as "wrong the day it was decided." Indeed, Schueller and Ebel have since been held out by some as evidence that German Americans were treated more fairly than Japanese Americans because of racial prejudice. But those decisions also stand out as powerful examples of the critical role that the judiciary can and should play in protecting individual civil liberties against unsupported claims of a national security threat.
There are other cases that support the authority of the courts to check "manifestly unauthorized exercises of power," even in wartime. Notably, Ex parte Milligan countermanded the president's approval of the use of military commissions in Indiana, citing "judicial knowledge that in Indiana the Federal authority was always unopposed." We discuss Sterling, Milligan, and other relevant cases in an amicus brief filed in the Fifth Circuit on behalf of the Brennan Center, Cato Institute, and law professors Ilya Somin and John Dehn.
But Sterling, and particularly Schueller and Ebel, should weigh heavily in this case, given the Alien Enemies Act's role in World War II internments and the breadth of the power the administration is trying to unlock through its use of the law in peacetime. A Department of Justice memorandum on the current Alien Enemies Act invocation mentions the possibility of warrantless house raids and summary deportations that bypass protections for refugees. When the facts are so clear, and the stakes of judicial deference are so high, the courts must exercise their independent judgment lest they sanction another mistake that will echo through our nation and legal community for generations.
I (Ilya Somin) have previously criticized Trump's invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.
