From Thursday's Seventh Circuit decision in U.S. v. Rose, written by Judge Frank Easterbook and joined by Judges Thomas Kirsch and Doris Pryor:
In September 2009 Jonathan Rose was involuntarily committed to a mental hospital in Indiana, suffering from a "psychiatric disorder." The record does not name the disorder or contain a detailed evaluation by a mental-health professional. He was released in January 2010 and has not been recommitted.
In 2022 Rose purchased several guns. He tried and failed to purchase others but was turned down because of his civil commitment. (A mismatch of birthdates in public databases seems to be responsible for his success on some occasions and failure on others.) In 2023 Rose was indicted for acquiring guns in violation of 18 U.S.C. § 922(g)(4), which prohibits anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution" from possessing firearms. He also was indicted under 18 U.S.C. § 922(a)(6) for lying to the gun dealers. Rose told each dealer that he had never been committed to a mental institution. United States v. Holden (7th Cir. 2023), concludes that § 922(a)(6) is compatible with the Second Amendment.
But the district court concluded that § 922(g)(4) is not, as applied to someone who is no longer mentally ill. It dismissed those counts of the indictment, leading to this appeal by the United States.
Other courts of appeals have reached divergent conclusions about the validity of § 922(g)(4). See Tyler v. Hillsdale Sheriff's Department (6th Cir. 2016) (en banc) (invalid except as applied to a currently dangerous person); Beers v. Attorney General (3d Cir. 2019) (valid), remanded with instructions to dismiss as moot, 590 U.S. 940 (2020); Mai v. U.S. (9th Cir. 2020) (valid). All of these decisions predate [the Supreme Court's decisions in Bruen, Rahimi, Hemani, and Wolford]. Between Rahimi and Hemani the Fourth Circuit rejected a facial challenge to § 922(g)(4) while reserving the possibility of an as-applied challenge. U.S. v. Gould (4th Cir. 2026). The issue is open in this circuit….
Heller [and later cases] flatly stated that "longstanding prohibitions on the possession of firearms by felons and the mentally ill" are presumptively valid…. But … the Justices' remarks concern people who are mentally ill, not people who used to be mentally ill. Yet § 922(g)(4) applies to anyone who ever was committed to a mental institution. Some people are committed but released after they recover; others are committed in error and released once the mistake is discovered. Neither set of persons is mentally ill today, but § 922(g)(4) applies to both categories.
From Judge Matthew McFarland (S.D. Ohio) Thursday in Rice v. Schell; the analysis seems basically correct to me:
[T]he Advance Ohio Higher Education Act ("S.B. 1") … touches upon, among other things, the discontinuation of offices and orientation programs related to diversity, equity, and inclusion ("DEI") at public universities. Miami University is one such state university that has closed certain committees, entities, and programs related to DEI — both before and after S.B. 1 became effective.
A tenured professor now seeks judicial relief to reinstate these entities and programs on constitutional and statutory grounds. This request raises several questions, including the fundamental question of who decides which committees, entities, and programs a public university should maintain. As for the limited question presented here, the record does not demonstrate that Plaintiff—an individual professor unimpeded in his classroom teaching, scholarship, research, or publications—can proceed with his claims in federal court….
The Court starts by outlining what is at issue in this case and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law on institutional autonomy grounds or otherwise. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving abridgment of a professor's speech in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events.
From U.S. v. Virginia, decided yesterday by Judge Robert Payne (E.D. Va.); these conclusions played a role in the court's "irreparable harm" analysis, one of the factors that the court had to consider in deciding whether to grant a preliminary injunction:
The record in this case shows that, with increased enforcement activity and the resistance thereto, there came to be "increasingly common threats of targeted harassment of and retaliation against federal immigration officers for simply doing their jobs." In particular, it is shown by the affidavit of Eric S. Weiss, the Deputy Field Office Director for the United States Department of Homeland Security, United States Immigration and Customs Enforcement, Enforcement and Removal Operations ("ERO") division, that:
Individuals, including immigration activists and other members of the public, routinely photograph, film, and publish online ICE ERO enforcement actions to include the personal identities of ICE officers and other federal task force personnel. The photographs and films are posted online for the sole purpose of intimidating and harassing government employees and are directly used by members of local organized crime and transnational criminal organizations in serious and potentially deadly ways.
That activity is commonly referred to as "doxxing." According to Weiss, "ICE personnel regularly observe and overhear individuals shouting phrases such as 'doxx these people,' 'find out who they are and where they live,' and 'we will find out who you are and who your family members are.'" Weiss also avers that there is credible intelligence showing that Mexican criminals coordinating with domestic extremist groups:
have placed targeted bounties for the murders of ICE and CBP personnel in a tiered bounty system. Cartels have disseminated a structed bounty program to incentivize violence against federal personnel, with payouts escalating based on rank and action taken.
The bounty system includes $2,000 "for gathering intelligence or doxxing ICE officers," $5,000 to $10,000 "for kidnapping or non-lethal assaults on standard ICE/CBP" officers and agents, and up to $50,000 "for the assassination of high-ranking officials."
According to the record, "[d]oxxing of ICE officers/agents has also been encouraged across the web." For example, "ICESpy.org, ICEList.is, and ICEList.info" are sites that "perpetrat[e] the doxxing of ICE staff and contractors."
Also, some who oppose the current modes of enforcing the immigration laws take pictures of ICE officers' faces and run those pictures through facial recognition applications so that the pictures can be searched through social media. Experience has shown that, when an identification of the officer is thereby made, the search continues to identify the ICE officers' family members and to locate the homes of the agents. Those findings are then posted on the anti-ICE websites which urge harassment of the ICE officers and interference with them in the conduct of their jobs in enforcing immigration laws.
From U.S. v. Virginia, decided yesterday by Judge Robert Payne (E.D. Va.):
On May 20, 2026, citing concerns that federal law enforcement officers were "undercut[ting] basic expectations of accountability, sow[ing] fear and confusion, and erod[ing] the public trust," Governor Abigail Spanberger signed the Mask/Identity Law. The Mask/Identity Law makes it a misdemeanor [with some exceptions] for a "law-enforcement officer" to "wear a facial covering that conceals, obscures, or otherwise covers his face while such law-enforcement officer is engaged in the performance of his official duties." A "law-enforcement officer" includes both state and federal law enforcement officers….
The court concluded that the law likely couldn't be applied to federal officers; that result seems correct to me, given the precedent limiting state attempts to control federal officers' performance of their jobs:
The United States argues that the Mask/Identity Law directly regulates ICE's enforcement of the federal immigration laws. The United States relies heavily on the decision in U.S. v. California (9th Cir. 2026). The Ninth Circuit's analysis focused on California's mandate of "visible display of identification" for law enforcement. As the Ninth Circuit correctly explained, there is a direct regulation of the government where a state law, "lays hold of federal officers in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient." {The district court found that the mask component of California's law discriminated against the Federal Government. That finding was not appealed.}
In Johnson v. Maryland (1920), the Supreme Court held that a federal postal service employee could not be convicted of violating a state law that required drivers in the state to have a state driver's license because doing so would "lay[ ] hold of" employees and require additional qualifications the Federal Government did not have for its own employees. When so doing, the Supreme Court distinguished state laws like driver's license requirements from a "general rule[ ]" that "incidentally" might affect "the mode of carrying out the employment" (citing "the mode of turning at the corners of streets" as an example of a permissible law). Applying, Johnson, the Ninth Circuit concluded that the California identification requirement "requires qualifications in addition to those that the [federal] Government has pronounced sufficient." In other words, California added requirements for federal officers to follow while conducting law enforcement activities, and thereby regulated the federal activity.
In U.S. v. Virginia (4th Cir. 1998), the Fourth Circuit found invalid a similar kind of state law that sought to regulate the FBI's use of private contractors by imposing hiring requirements beyond those that had been set by the FBI. Such additional requirements do "not merely touch the Government servants remotely by a general rule of conduct; [they] lay[ ] hold of them in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient."
From the June 23 decision in Huckabee v. Meta Platforms, Inc., by Third Circuit Judge Peter Phipps, joined by Judges Arianna Freeman and Emil Bove:
Mike Huckabee … is a Baptist minister, the former Governor of Arkansas, a two-time presidential candidate, a New York Times best-selling author, a nationally syndicated radio and television host, and the current United States Ambassador to Israel.
Between April and June 2024, his name, image, and likeness were used in three different advertisements to endorse cannabinoid, or 'CBD,' products on the Facebook social media platform …. One of the advertisements reported that Huckabee was leaving his then-job as a television show host on Trinity Broadcasting Network, a Christian-based television network, to "[p]ursue [a] [g]reater [p]urpose," which was the promotion of CBD products. In another advertisement, Huckabee appeared to "open[ ] up about his health problems and the miracle that helped him turn his life around," which was the use of CBD products.
Another advertisement contained a link, which if clicked, opened what appeared to be, but was not, the Fox News website. That linked webpage had an article with Huckabee's name, image, and likeness reporting that he was leaving his television show due to health issues from an autoimmune disease, and that "[a]s a God-fearing Christian," he recommended "CBD [as] the future of medicine in America," since it was "more effective than similar offerings from … 'Big Pharma' Companies." Each of the advertisements was made by a third party without Huckabee's permission, and Facebook was paid to feature those messages to its users.
The advertisements were a commercial success: after viewing them, "numerous fans" of Huckabee purchased the CBD products. Huckabee learned of the advertisements in or around May 2024, and Facebook removed them from its platform in June 2024. This was not Facebook's first experience with CBD advertisements that had misused the names, images, or likenesses of other public figures. It had previously hosted similarly unauthorized CBD advertisements depicting media personalities Laura Ingraham, Jeanine Pirro, and Sean Hannity, and news outlets reported on those instances.
Huckabee sued under Arkansas's Frank Broyles Publicity Rights Protection Act of 2016, which exempts social media platforms from liability so long as they lack "actual or constructive knowledge of the unauthorized commercial use of a person's name, image, or likeness." He pointed to these items as sufficient to allege a plausible claim of such knowledge:
Ilya Somin has already covered much of the Trump v. Barbara territory in his posting here on the VC a few days ago [available here], and I agree with everything he writes, including his terse summary: "The 6-3 decision was right, and a contrary ruling would have had horrific results."
I'll assume the basic framework of the case is familiar to you all. If not: The Citizenship Clause of the 14th Amendment says that anyone "born . . . in the United States and subject to the jurisdiction thereof" is a US citizen. The case turns on the meaning of those five italicized words: "subject to the jurisdiction thereof". Trump's Executive Order (#14160 [available here]) says that individuals born here whose mothers are present in the US "unlawfully" are not US citizens. He asserts that this does not violate the Citizenship Clause because those individuals are not"subject to the jurisdiction of the United States" within the meaning of that phrase – at least, within the meaning of that phrase in 1868, when the Citizenship Clause was added to the Constitution.
Plaintiffs, needless to say, disagree, as does a majority of the Court.
Having now read through the six different opinions,*
*Roberts for the Court, Jackson concurring, Thomas dissenting, Alito dissenting, Gorsuch dissenting, Kavanaugh concurring in the result and partially dissenting. The entire set is available here.
a couple of points struck me as highly unusual and noteworthy.
In particular, Justice Kavanaugh's separate opinion – concurring (in Part I) in the Court's judgment (Executive Order 14160 is invalid), dissenting (Part II) on the underlying rationale for that invalidity – is an extremely interesting piece of judicial work, well worth a careful reading.
Justice Kavanaugh votes to invalidate Trump's Executive Order because, as he says, it "contravene(s) a federal statute." What statute, you ask? The Immigration and Nationality Act, 8 U.S.C. §1401(a), which "mirrors the text of the Fourteenth Amendment," providing that "All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Read More
The American bald eagle--our nation's national bird and symbol--is doing well. Populations have been expanding for years, and are now approaching the levels estimated for the founding era.
Many policymakers, pundits and professional environmentalists want to credit the Endangered Species Act for the success of eagle recovery efforts. But try as they might, it is hard to find much evidence that the ESA (as opposed to other conservation laws and recovery efforts) did much good, for reasons I explain in the latest issue of PERC Reports, published by the Property & Environment Research Center in Bozeman, MT.
The biggest factor in the eagle's recovery was almost certainly the banning of DDT for most uses. But this was done prior to the enactment of the ESA, under a different law (and by the EPA, not the Fish & Wildlife Service, the latter of which administers the ESA). The eagle also received more targeted protection from other laws. The bald eagle was officially removed from the endangered species list in 2007, and since then populations have continued to soar without the ESA's protection.
There's more, but those are reasons to read the article. It concludes:
Americans should be pleased that bald eagle populations continue to expand. The growing number of bald eagles is a conservation success story. But given the act's longstanding and widespread record of failing to promote species recovery, we should be careful before attributing that success to the Endangered Species Act.
Jonathan H. Adler
[ And, yes, for those curious, I took the picture that accompanies this post.]
The material to which plaintiffs are objecting, from the court filings.
An excerpt from Openden v. Kennedy, decided Tuesday by Judge Adam Abelson (D. Md.):
In June 2024, the Centers for Medicare and Medicaid Services (CMS) distributed a video internally to its employees as part of a "Coffee With" series. The June 2024 episode was an interview with Ronza Othman, the director of the EEO Compliance Group within CMS's Office of Equal Opportunity and Civil Rights. In the video, Ms. Othman, who is an attorney who happens to be blind and was holding a white cane, describes her hobbies, the challenges and opportunities of serving in a role like hers, and other aspects of her approach to her job.
Plaintiffs in this case worked for CMS at the time and are Jewish. They have sued the Secretary of the U.S. Department of Health and Human Services in his official capacity ("Defendant" or "HHS"), contending that the video constituted "severe, pervasive, and unwelcome harassment" on the basis of national origin and religion. They do not take issue with the content of the interview but rather with a scarf that Ms. Othman was wearing during the interview that both Plaintiffs and Ms. Othman have described a keffiyeh. Plaintiffs do not take issue with Ms. Othman wearing a keffiyeh as such, but rather focus on an image on it that includes a Palestinian flag, a map, and a hand with two fingers raised. Plaintiffs contend that they perceive the image as "advocating for the murder and slaughter of persons of Jewish heritage and faith, as well as the destruction of Israel."
HHS vigorously disputes that characterization, or the reasonableness of that perception. But for current purposes the Court need not wade into those disputes because for Plaintiffs' hostile work environment claim to proceed, they must allege either (1) that Ms. Othman was Plaintiffs' "supervisor" or (2) that after being put on notice of the allegedly harassing behavior HHS took "'no prompt and adequate remedial action to correct it.'" Plaintiffs' allegations do not allege facts that would satisfy either standard.
"[Students] reported that the course content did not align with its description in the course catalog; that the course was poorly organized and 'essentially was a stream of consciousness conversation' about Dr. Chavis's personal issues; and that Dr. Chavis humiliated certain students because of, for example, their race and fraternity affiliation."
From Chavis v. UNC, decided Tuesday by Chief Judge Catherine Eagles (M.D.N.C.):
Dr. Larry Chavis was a non-tenured professor at the University of North Carolina-Chapel Hill Kenan-Flagler Business School. In 2024, UNC declined to renew his teaching contract. He alleges that decision was based on his race, made in retaliation for his reports of discrimination and outspoken criticism of UNC on diversity issues, and violated his First Amendment rights….
The facts as recited are either undisputed or viewed in the light most favorable to Dr. Chavis, as required at this stage of the proceedings.
Dr. Chavis began working at UNC in 2006 …. During the summer of 2022, Dr. Chavis taught a graduate microeconomics course at UNC. One student in that class left course feedback stating in part:
Even though as a social liberal I agree with 90%+ of [Dr. Chavis's] personal observations about our society today – I think you would be better served to not share everything that you do during class. If I had wanted a degree in some sort of Native American studies or African American studies I would not have pursued an MBA. While I was not the least bit offended by your observations, I suspect there were some of the class that were.
When Dr. Chavis learned about the comment, he posted an excerpt of it on LinkedIn and stated that it was "just mean and walks right up to and probably crosses a line into being offensive." There is no evidence to indicate UNC took any action based on the evaluation or Dr. Chavis's post, and at the end of the 2022-2023 school year, UNC renewed Dr. Chavis's contract for another year….
As part of meeting with faculty and conducting focus groups, [Business School] Dean Frank met with Dr. Chavis in February 2024 to discuss his thoughts about the business school and his position. In an email sent shortly after that conversation, Dr. Chavis expressed frustration with his lack of career advancement at UNC and explained that he limited his time and interactions at the business school because of his perception that other faculty members "hate [him] for being too truthful and too supportive of equity."
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Cert granted! This week, SCOTUS took up IJ case Hoffman v. WBI Energy Transportation, which pits North Dakota ranchers against a private pipeline company that wants to run roughshod over state-law protections for private property. Click here to learn more.
New on the Bound By Oath podcast: In 1960, the Supreme Court ignored text, history, and tradition and disfigured the Fourth Amendment, allowing warrants to issue based on hearsay. Which was bad and wrong, and the Court can fix it right now.
Puerto Rico puts over $2 mil in a court-controlled, interest-bearing account to pay for land condemnations. Before disbursing, the judiciary takes a 15 percent cut of the accrued interest. An unconstitutional taking? First Circuit: Doesn't seem like it.
An IRS official who wants to assess a tax penalty must obtain written approval from his immediate supervisor—but, surely, the IRS says, that requirement can't apply if a taxpayer's liability has already been conclusively adjudicated, right? I mean, we're not going to have some middle manager sign off on whether a court got it right, are we? C'mon, guys. Right? Second Circuit: Rules is rules. Read More
(Note: For those unfortunate few who hate soccer, you can just skip to the next post—and you are missing one of the world's greatest sporting events.)
Like more than 30 million other Americans, last night I watched the U.S. Men's National Team (USMNT) defeat Bosnia and Herzegovina 2-0 at the FIFA World Cup.™ The big talking point after the game was whether the "straight" (i.e., immediate) red card given to the American striker, Folarin Balogun, was correct. As a long-time fan of the U.S. men's team (and the women's team, see, e.g., my post here), it may not be a surprise that I disagree with the call. And I acknowledge that I lack formal training in the rules of the World Cup. But as a lawyer and former trial court judge, I do have training and experience in applying rules to specific fact patterns. That background leads to me question the decision last night. Because it is interesting to think about how legal rules apply in this situation, I thought a short blog might be appropriate and timely.
To briefly recap the situation, last night at about 63 minutes into the match, the USMNT was leading the Bosnian team 1-0. Then American striker Balogun and Bosnian defender Tarik Muharemovic came together as they competed to claim a ball high in the air. You can watch video of the incident here. As Balogun came down, the studs on his boot (e.g., his right cleat) landed on the ankle of Muharemovic. The referee on the field called nothing. But after the Video Assistant Referee (VAR) looked at incident in slow-motion, he called the referee to review the images. After slow motion review of the video, the referee changed his earlier call and gave Balogun a red card for "serious foul play." This red card means Balogun was ejected from the game—and he will now miss the USMNT's next game against Belgium on Monday.
As a lawyer considering the red card, four concerns come quickly to mind:
The "Time Framing" Problem
In law, a common issue is deciding the appropriate time frame to assess a disputed action. In criminal law, for example, a defendant's actions may look culpable if one focuses on a narrow point in time. But stepping back and viewing the situation more broadly places the conduct in a different light. A simple illustration is that a defendant shooting a person might look like murder, if analyzed exclusively by focusing at the time the shot was fired. But rewinding time and learning that a few seconds earlier the person killed had made serious and plausible deadly threat to the defendant, the defendant's action might be reasonable self-defense. Selecting the right time frame is critical.
Applied to Balogun's situation, the time framing issue is whether to assess the correctness of the red card at the time he landed on the defender's ankle—or earlier. Almost by definition, the assessment must involve a broader time frame than when Balogun landed. To offer a simple hypothetical example, suppose Balogun had jumped straight up in the air to try and win the ball and the defender had deliberately placed his ankle under Balogun to draw a red card. Focusing just on the landing would provide a misleading impression.
In Balogun's situation, the issue of whether he engaged in serious foul play would seem to turn on the time at which he launched his jump. Thereafter, of course, his ability to change his trajectory would be very limited. And yet, according to the American televised broadcast, the VAR officials and referee appeared to focus on the time at which he landed.
The time framing problem becomes even more substantial when we consider what happened after Balogun's launch and during his jump. As shown in the image below, the defender's arm is extended into Balogun, clearly changing the trajectory of his jump.
Of course, if Balogun was knocked off balance by the Bosnian player, that would seem to place the incident in a different light.
The Supreme Court's final decision of OT 2025, in Trump v. Barbara reaffirmed the conventional understanding of birthright citizenship under the Fourteenth Amendment, and held President Trump's Executive Order purporting to deny citizenship to the children of temporary visitors and illegal aliens born on U.S. soil unconstitutional. Writing for the Court, Chief Justice Roberts reached to resolve the case on constitutional grounds, eschewing the narrower (and more bulletproof) statutory arguments against the E.O. And as a consequence, the Chief's opinion in Barbara only garnered five votes.
Justice Kavanaugh concurred in the judgment, albeit on statutory grounds, and joined Justices Thomas, Alito, and Gorsuch in rejecting the Court's constitutional claims. None of the justices fully embraced the Trump EO's constitutionality, but the four all rejected the Chief Justice's constitutional holding.
While I believe the Chief Justice's opinion embraced the best interpretation of the Fourteenth Amendment's citizenship clause, I believe it was an error to reach the constitutional question given the clear statutory infirmity of the President's E.O., for reasons I explain in my latest Civitas Outlook column. A decision resting on statutory grounds would have received at least six votes; none of the dissenters addressed the statutory claim to any meaningful degree.
My column concludes:
In articulating and embracing a broad constitutional rule, the Chief Justice likely sought to settle the birthright citizenship debate for the body politic. He probably failed. Resolving the case on constitutional grounds produced a narrower majority than was necessary to resolve the case and invited extensive response, including over 130 pages of dissents. Legislative proposals on "birth tourism" and the like are sure to follow.
Although he considers himself a student of history, Chief Justice Roberts may not have learned history's lesson here. While fairly (and in my view, accurately) recounting the history of American citizenship, he neglected to consider the history of judicial overreach. On several occasions in our nation's history, justices have sought to quell political contestation through judicial edict, hoping the power of the pen would quell political discord. The controlling opinion in Planned Parenthood v. Casey (1992) called on "the contending sides" of that "national controversy" to lay down their opposition and heed the Court's opinion. Their argument fell on deaf ears and arguably enflamed the opposition to the Court's abortion jurisprudence.
It is unlikely that Trump v. Barbara ended the debate over birthright citizenship. It may have truly started it.
UPDATE: Some may think any continuing debate over birthright citizenship will be exclusively political. Despite a burst of recent revisionist scholarship, and a handful of responsive works, most assume the academic case for the conventional account of birthright citizenship has been conclusively made. While I remain convinced the conventional account represents the better interpretation of Section 1 of the Fourteenth Amendment--and believe that there is relatively little in the dissents that has not been addressed in the relevant scholarship--I believe it would be an error to assume even the academic debate is over. I say this for several reasons (which I list in no particular order.
First, the best way to interpret the relevant language ("subject to the jurisdiction") is not self-evident, and the specific concerns at issue today were not those at the time of its adoption. While the conventional account makes a strong case for what this phrase means, it is less persuasive at establishing that this language represents a closed set of categories that cannot be modified, stretched, or expanded (particularly if, like most constitutional law scholars, one assumes Section Five of the Fourteenth Amendment grants meaningful power to Congress).
Second, many defenses of the conventional account are too conclusory, dismissing potential complications in the narrative or assuming away potential distinctions that could be drawn (say, for instance, between illegally trafficked enslaved people and illegal entrants or visa overstays).
Third, most legal academics reject originalism as a methodology, so it is unclear that (for purposes of academic debate) originalist accounts of birthright citizenship are those that matter--and unclear the extent to which non-originalist methodologies support the conventional account unless one assumes the desirability of maintaining birthright citizenship (an assumption many people do not share, particularly as applied to illegal immigrants and "birth tourists.").
Fourth, insofar as we are in a legal-political moment in which many people argue the Court should be (even) less active at constraining the body politic from enacting desired policies--that the Court should be more Thayerian--it is not clear why this would not apply as readily to Section 1 of the Fourteenth Amendment as to other constitutional provisions. If the Court should, as a general matter, be less prone to substitute its constitutional interpretation for that of the public, why would that not also apply here?
Whether or not the academic debate continues (on BlueScream some speak of "repercussions" for academics who endorsed citizenship wrongthink), the political debate is likely to rage. Immigration remains a potent and powerful political issue, and even though the Court handed the Trump Administration multiple immigration policy wins, political churn on this issue is likely to continue unless and until there is meaningful legal reform, and that could take some time. So while I am skeptical Barbara will be the new Roe, I am doubtful that the decision truly settled anything other than what the law is, for now. That ain't nothing, but it ain't everything either.
Today's order by Judge Thomas Barber (M.D. Fla.) in Trump Media & Tech. Group Corp. v. WP Co. LLC grants summary judgment to the Post, and says that a full opinion will be forthcoming (presumably in some days or weeks). In the meantime, here's the summary from the motion for summary judgment that the court granted:
On May 13, 2023, The Post reported that TMTG, a company founded by then-former-President Donald Trump, had received $8 million in loans from an obscure financial entity, ES Family Trust. The Post's article (the "Article") was part of its continuing business coverage regarding TMTG's efforts to launch and fund a social media platform and followed two Post articles reporting on information disclosed by TMTG-co-founder-turned-whistleblower Will Wilkerson. The Article also reported that, based on internal TMTG documents Wilkerson provided, TMTG had agreed to pay and paid a $240,000 finder's fee to Entoro Securities, a brokerage associated with the CEO of TMTG's prospective merger partner, Digital World Acquisition Corp. ("DWAC"). According to the Article, neither the $8 million loan—which entitled ES Family Trust to company shares after the merger—nor the finder's fee were disclosed to the Securities and Exchange Commission ("SEC") or DWAC's shareholders.
TMTG sued The Post for defamation, claiming the Article contained nine false and defamatory statements about TMTG. After three rounds of motions to dismiss, TMTG's claim was narrowed to just two statements, both involving the finder's fee. The operative Complaint claims that the Article's statements that (1) TMTG "paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust" and that (2) Entoro, a "brokerage associated with Patrick Orlando," was the "recipient of that fee," are false and defamatory because "TMTG never paid or agreed to pay a $240,000 'finder's fee.'" In a passage that TMTG did not include in the Complaint, the Article also reported that "[i]n January 2022, Trump Media agreed to pay a cash referral fee—equal to 3 percent of the $8 million loans, or $240,000—to a Houston-based brokerage firm called Entoro Securities, according to a referral fee agreement and an Entoro invoice provided by Wilkerson."
Not only is the problem overblown. It isn't really a problem at all. It's also irrelevant to the constitutional question addressed by the Supreme Court.
Critics of the Supreme Court's birthright citizenship decision in Trump v. Barbara often cite the issue of "birth tourism" - situations where a pregnant woman comes to the US to give birth for the specific purpose of ensuring that the resulting child will be a US citizen. The issue comes up often in political discourse, and is a major focus of Justice Samuel Alito's dissent in the case. As a legal matter, birth tourism should have no effect on the resolution of the constitutional issue before the Court: the meaning of the Citizenship Clause of the Fourteenth Amendment. As a matter of morality and policy, the problem is not just overblown, but actually not a problem at all.
The Citizenship Clause grants citizenship to "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof." As Chief Justice John Roberts explains in his majority opinion for the Court, this covers almost everyone born in the US, excluding only groups that are largely exempt from sanctions for violating the law, such as children of diplomats who have diplomatic immunity. That includes the groups Trump sought to exclude from birthright citizenship in his January 2025 executive order: children of undocumented immigrants and those here on temporary visas. Children of "birth tourists" are covered in the same way. Unless their parents are diplomats or the like, they too are subject to US law.
In my previous post about the Supreme Court decision, I summarize the reasons why the majority's approach is correct, and the various dissenters wrong. Among other things, the dissent arguments all run afoul of the main purpose of the Citizenship Clause: ensuring citizenship rights for freed slaves, their children, and other Blacks.
Moreover, the scope of this phenomenon is very limited. PolitiFact recently compiled estimates of the number of children born to "birth tourists" on US soil. Most estimates fall within a range of about 5000 to 10,000 per year. The immigration-restrictionist Center for Immigration Studies gives a much higher estimate of 26,000 per year. CIS's data analyses are often badly flawed and misleading. But even this higher figure is only about 10% of the over 250,000 children per year who would lose birthright citizenship status if Trump's executive order had been upheld by the Court. Preventing this relatively small number of birth tourism cases isn't worth consigning hundreds of thousands of people to deportation back to what for most would be a lifetime of poverty and oppression. It also isn't worth the damage to the US economy and society.
Moreover, birth tourism isn't actually a bad thing at all. It's a positive good. Presumably, "birth tourist" parents want their children to be born US citizens so they could live a life of greater freedom and prosperity than would be possible in the parents' countries of origin. That's obviously a good outcome for the children and their families. And it's good for the US economy and society, as well, because native-born US citizens benefit from the enormous economic and social contributions of immigrants. Indeed, immigration restrictions undermine the economic freedom and prosperity of native-born US citizens more than any other government policy.
Restrictionists tend to assume that immigration and citizenship are zero-sum games. If an immigrant comes and (worse still) becomes a citizen, that somehow takes something away from natives. But in the vast majority of cases, the exact opposite is true. Immigrants and natives can progress and prosper together.
Children of birth tourists are unlikely to be exceptions to these general trends. The main difference between them and other migrants is that their parents carefully planned to be in the US at just the right time. Such foresight and planning is a positive trait, not a negative one.
To be sure, some such children might turn out bad, growing up to be criminals, terrorists, and so on. But the same is true of some proportion of virtually any group of many thousands of people. There is no reason to categorically exclude all members of such groups based on that possibility. Under that approach, the US should have barred the ancestors of virtually all current US citizens. After all, most of those ancestors were migrants who were members of groups that included some criminals and other malefactors.
There is also the possibility that the parents might leave the United States and never return, taking the kids with them. But if so, the children may live out their lives elsewhere, and their being US citizens would not cause anyone any harm (albeit also creating little benefit). If they then return to the US as adults many years later, there is no reason to think that would, on average, be harmful either. For example, there is no evidence that children of birth tourists have become significant sources of espionage or threats to national security.
Perhaps some of these adult returnees will be bad voters. But if so, they are highly unlikely to be a large enough group to influence electoral outcomes. Besides, it's unlikely they would be much worse than the the electorate we already have, which suffers from widespread ignorance and bias.
Ultimately, there is no coherent objection to birth tourism that isn't an objection to immigration more generally. If you want to massively reduce immigration overall, then you will likely want to reduce birth tourism, too (even though it's only a tiny fraction of the total). But there is no reason to single out the latter.
I am not an unequivocal supporter of birthright citizenship. Elsewhere, I have explained why it's a "second-best policy." It would be much better if people had a right to freedom of movement regardless of where they happened to be born. That would also eliminate the need for "birth tourism." But birth tourism is not a valid reason to replace birthright citizenship with something more exclusionary, rather than less so.
In sum, birth right tourism is legally irrelevant to the constitutional issue that the Supreme Court decided. And it's a relatively minor phenomenon that isn't a problem at all. It would be good to have more of it!
UPDATE: I have made a few minor additions to this post.
