The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
President Biden's and the Democrats' Assault on the Supreme Court and the Rule of Law
Democrats tried to alter unconstitutionally the membership of the Supreme Court; they extorted Facebook into censoring free speech; they issued presidential executive orders unsupported by statute; and they pushed unprecedented prosecutions of Biden's predecessor in office, and his 2024 opponent, in the presidential race.
Democrats are accusing President Trump of undermining judicial independence by not following court judgments in immigration cases. Put aside that, as of yet, it is far from clear that any judicial orders have been violated. Even under the worst assumptions, what Trump is doing to the independence of the federal courts is far less serious than what the Biden-Harris Administration tried to do to the independence of the federal courts.
On April 9, 2021, President Biden created a "Commission" to examine "reforming" the "membership" of the U.S. Supreme Court. This action alone is a more serious threat to judicial independence and to the rule of law than are any of the actions with respect to the courts taken so far by President Trump. Imagine how the Democrats would react if President Trump were faced with a liberal Supreme Court majority and therefore created a Commission to examine "reforming" the "membership" of the Supreme Court. Democrats would say fascism was around the corner.
Among the ideas the Biden Commission seriously considered were imposing 18-year term limits on Supreme Court justices by passing a statute. This is an idea which I once favored for policy reasons, but which I concluded decades ago in a law review article could only be done by a constitutional amendment. I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.
Nonetheless, after Joe Biden withdrew his presidential candidacy last summer because of his dismal performance in a nationally televised debate, he gave a speech in Texas endorsing a statute term limiting the Supreme Court justices (a proposal that was understood as calling for legislation, not a constitutional amendment, in part because in the same speech Biden called for a constitutional amendment to overturn the Supreme Court's presidential immunity decision in Trump v. United States (2024) while not calling for a constitutional amendment to change the membership of the Supreme Court). Senator Sheldon Whitehouse's bill to do this provided for eliminating the Senate filibuster as to his 18 year Supreme Court term limits bill. Vice President Kamala Harris, who became the Democratic Party's nominee for president, immediately endorsed Joe Biden's plan for statutory court packing via term limits. As Senator Whitehouse's bill makes clear, the plan was to eliminate the Senate filibuster and ram the term limits, i.e., court packing, through both Houses of a narrowly divided Congress despite the absence of any popular mandate to make such a sweeping change, which would have trashed the rule of law and demolished the independence of our life tenured judiciary.
Pope Leo XIV and Immigration
The first American pope has a history of advocating for migrants' rights.
I did not expect an American Pope. I thought there was a norm against it, by virtue of the Church wanting to avoid being led by a citizen of the world's most powerful nation. But either I was wrong, or the norm has faded. Today, Cardinal Robert Prevost became the first American pope, taking the name of Leo XIV.
At least on the issue of immigration I am guardedly optimistic this might be a good choice. Cardinal Prevost's (now Leo XIV's) Twitter/X feed includes several posts critiquing Trump and Vance on immigration, such as this one and this one. Conservative Catholic legal commentator Ed Whelan of the Ethics and Public Policy Center has also called attention to these tweets and suggests Cardinal Prevost's positions on this issue might have been instrumental in his selection as pope. I don't know about that. But I hope it's true.
While serving the Church in Peru, Cardinal Prevost advocated for the rights of Venezuelan refugees. We have that cause in common. In a much, much less significant way, I have tried to do the same here in the US, defending the valuable CHNV program (which allows Americans to sponsor Venezuelan and some other migrants fleeing Latin American dictatorships) against attacks by state governments and the Trump Administration, opposing Trump's illegal efforts to use the Alien Enemies Act to deport Venezuelans. I have also informally advised people and organizations working to sponsor Venezuelans in the CHNV program.
This is just speculation. But perhaps advocating for Venezuelan refugees from socialism has led the new Pope to appreciate how awful that ideology is (a major blind spot for his predecessor). If socialism were all it's cracked up to be, it would not have generated a horrifically oppressive regime whose depredations have led to the biggest refugee crisis in the history of the Western hemisphere. And if socialist policies were actually good for the poor, the poor would not be fleeing them in droves.
Atheist though I am, I will always be grateful to Pope John Paul II for his leadership in the struggle against communism, the greatest evil in the world at that time. Perhaps - just perhaps - the new pope can help lead the struggle against nationalism - the greatest evil of this time; see my article "The Case Against Nationalism" (coauthored with Alex Nowrasteh) on why it's so awful, including in ways that parallel the evils of communism. Immigration is a central front in that vital struggle, though not the only front, by any means. And the leader of the world's biggest universalist religious denomination is well-positioned to help combat it, should he wish to.
Obviously, this pope - like his predecessors - is likely to take many positions I am no fan of. I have no illusions that he's secretly somehow a libertarian. But if he advocates for migrants and works to oppose socialist and nationalist oppression, he could do great good.
It may see improper to evaluate popes based on their views on social and political issues. But, like it or not, the leader of the world's largest religion is necessarily a political figure, one with great potential influence on political debate. Thus, even those of us who are not Catholic have an interest in considering the Pope's views on on such matters.
Things might be different if popes only sought to influence the internal affairs of their church and its adherents, as do the leaders of some smaller faiths. But the papacy has long sought to influence public opinion and government policy far beyond that.
UPDATE: It is perhaps worth noting that Leo XIII, the last Pope to take the same name as the current one, was highly critical of socialism, writing that "It is evident that the essential principle of socialism, the community of goods, must be completely rejected, as it only harms those it would seem to benefit, is directly contrary to the natural rights of humanity, and would introduce confusion and disorder into the common good." It is sometimes said that a Pope's choice of name indicates an affinity with the previous pope who took the same name.
Who's More Liberal, Law Professors or Their Students?
An interesting new study on the ideological concordance between law faculty and law students.
Several years ago, Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), published a paper showing that the legal academy is significantly more liberal than the legal profession. As I noted when the paper was first released, this was interesting because the legal profession itself is more liberal than the public at large.
The same authors have a new study, "Ideological Concordance Between Students and Professors," looking at the alignment, or lack thereof, between law professors and law students. The abstract reads:
The largely liberal composition of American university faculties is frequently lamented in academic discourse and public debate, largely out of concern that professors "brainwash" younger generations with left-leaning principles. However, these complaints often fail to acknowledge that university students are also overwhelmingly liberal. It is thus possible that university professors are more liberal than the American public but more conservative than their students. In this article, we develop a measure of student-professor ideological concordance based on the share of faculty members who are more liberal than the students at a given school. We then use data on the ideology of students and professors in American law schools over more than a twenty-year period to estimate the degree of ideological concordance in the legal academy. We find that although professors have become more liberal over time, they have also become more conservative than their students.
Their assessment is largely backward looking, as the study relies upon data between 1988 and 2011, but it is interesting nonetheless. One has to wonder, however, whether anything has changed in the academy over the past fourteen years. Did law professors continue to become more liberal over this time? And, if so, did students as well?
One other thing worth noting is that the authors explicitly consider whether law professors are influencing the ideology of their students, and conclude that this is unlikely. On this point, they write:
Another possible concern with the validity of our results is that the correspondence between student and professor ideology may be driven by professors having a causal impact on their students' ideology. The reason that this is a concern is that students largely make political donations after law school, and any correspondence between professors and students could be driven by the students' ideology being moved by the professors' ideologies.
Although it is certainly possible that professors exert some influence on law students' political views, we believe this is unlikely to be sufficient to drive our results. Importantly, although there is some evidence of peer effects on ideology from college students' roommates (Strother et al., 2021), there is no general evidence suggesting that exposure to a liberal environment in college moves students to become more liberal (Mariani and Hewitt, 2008). Moreover, by the time students attend law school, it is more likely that their ideology is stable (Green et al., 2004; Bonica, 2014). Relatedly, there is evidence that judges do not affect the ideology of their law clerks (Bonica et al., 2019). Although law school is likely an important life experience, clerking is typically thought to be an intense experience where recent law graduates work in extremely close quarters with judges. If clerking does not change a recent law graduate's ideological leanings, it is reasonable to think that law professors also would not have a large influence.
To investigate the possibility that professors may be having a causal impact on their students' ideology in our setting, we compare students' CFscores from donations made during and before law school to CFscores from donations made after law school. More specifically, Column 3 of Table 3 regresses CFscore based on all donations after law school on CFscore of all donations during or before law school, and Column 4 regresses CFscore based on donations within 10 years after law school on CFscore of all donations made during or before law school. We find that CFscores before law school strongly predict the CFscores after law school (a 0.77:1 and 0.70:1 relationship between these measures), suggesting that reverse causation is unlikely to be driving our results.
As with everything this quartet produces, the study is interesting. Alas, one of them has decided to become a Dean, so there may not be too many more of these papers coming.
Reasonable to Deny Pseudonymity to Plaintiff Who Seeks to Conceal That She Has Epilepsy
So holds the Eleventh Circuit.
From today's Eleventh Circuit opinion in Tessa G. v. Secretary, decided by Judges Adalberto Jordan, Robert Luck, and Embry Kidd:
In June 2023, Tessa G. filed a pro se complaint against HHS, her former employer, alleging disability discrimination, failure to accommodate, retaliation, illegal disclosure under the Americans with Disabilities Act, and deprivation of due process under the Fifth Amendment. In support of her complaint, Tessa G. explained that she has suffered from several disabilities, including epilepsy, for most of her life. Following surgical intervention that abated her seizures, she earned her law degree and began working with HHS in June 2013.
About a year into her tenure with HHS, Tessa G. disclosed her epilepsy diagnosis to request medical leave and inform her supervisor that she required an accommodation to be driven to any off-site meetings. Soon thereafter, HHS hired someone to replace Tessa G., gave her limited work to complete, and ultimately terminated her in November 2014. Tessa G. asserted that she found it difficult to find new employment and that she gained several new health conditions after her firing.
Tessa G. further explained that, shortly after her termination, she filed an Equal Employment Opportunity Commission ("EEOC") complaint against HHS, challenging her demotion and termination, and alleging that HHS disparaged her to others in her field. Although an administrative law judge ultimately entered default judgment in her favor, her recovery was limited due to the nature of her fixed-term contract with HHS, so she brought the instant case to pursue further relief.
Tessa G. also sought pseudonymity, but the lower court said no, and the Eleventh Circuit upheld that decision:
"Justice Is Not Served by Allowing This Game of Whack-a-Mole to Continue"
From today's decision by Judge Steven McAuliffe (D.N.H.) in Beres v. RELX, Inc.:
After multiple unsuccessful defamation suits against RELX, Inc., d/b/a LEXIS NEXIS USA, and Portfolio Media, Inc., in other courts, Christopher Beres, who is a lawyer proceeding pro se, brought the same claims in Hillsborough County (New Hampshire) Superior Court. Defendants removed the action to this court, but Beres then added Andrew Delaney as a plaintiff to destroy diversity jurisdiction and sought remand to state court.
The court granted the defendants' motion to sever Delaney from the case to preserve diversity jurisdiction, and denied the plaintiffs' motion to remand. Delaney is no longer a party in this case.
In response, Beres filed a notice of voluntary dismissal without prejudice. Defendants move to convert Beres's notice of voluntary dismissal without prejudice to dismissal with prejudice and also seek an award of fees incurred in litigating this case….
The factual backstory:
Delaney was employed in a temporary position at a law firm, where he worked on a project for the firm's client, Toyota, and apparently had access to confidential documents. The project was suspended during the COVID pandemic, resulting in Delaney losing his job. Delaney, through Beres, who was acting as his legal counsel, sent a demand letter to Toyota, but Toyota did not respond. In April of 2020, Beres filed a lawsuit against Toyota on Delaney's behalf in Brevard County, Florida. Beres included allegedly sensitive information about Toyota in that complaint. Delaney later dismissed the suit without prejudice.
Should a Killer's Victim Be Able to "Speak" at a Sentencing Through AI?
An Arizona trial court judge allowed this innovative approach to presenting a victim impact statement, which seems like a useful step toward justice.
Last week, the road-rage killer of an Arizona man was sentenced to 10 1/2 years in prison after his victim "spoke" to the court via a victim impact statement (VIS) created through artificial intelligence. The trial court judge allowed the victim's family to play an AI-generated video with a version of the victim—including his face and body and a lifelike voice—which appeared to ask the judge for leniency. The family has posted the statement here on YouTube. The defendant was apparently sentenced to the maximum term and has promised to challenge the statement on appeal. In my view, this kind of statement seems like a useful technological innovation that should be generally allowed, subject to reasonable limitations imposed by the trial court (which I discuss at the end of this post).
In this post, I discuss this AI-generated victim-impact statement against the backdrop of the existing legal landscape in this country. All fifty states and the federal system allow victims to deliver victim impact statements, as I outline in this article. (Interestingly, many other countries use some form of victim impact statement as well.) In homicide cases such as this Arizona case, the victim's family members step into his shoes as his representative to deliver the statement. I have made the general case for allowing victim impact statements in two papers, "In Defense of Victim Impact Statements" and "How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing" (co-authored with Professor Edna Erez). The U.S. Supreme Court has also approved victim impact statements even in capital cases, in Payne v. Tennessee (1991). To be sure, academics such as Professor Susan Bandes and Professor Mike Vitiello have raised objections to VISs. But for purposes of this post, I will assume that the legitimacy of VISs and address the narrower question of whether an AI-generated statement should be permitted.
This question should be assessed in light of the recognized purposes of victim impact statements. The first purpose is to provide relevant information to the sentencers, often (as in this Arizona case) a judge. This purpose has been described as the "informational rationale" for victim impact statements. Through a VIS, the victim's family members are allowed to provide "a quick glimpse of the life" the defendant "chose to extinguish," thereby reminding the sentencer that "the person whose life was taken was a unique human being," as Justice O'Connor explained in her concurring opinion in Payne. An AI-generated statement simply builds on that approach.
An AI-generated statement is not too far removed from previously used technologies, which help to provide the glimpse into the victim's life. For example, in homicide trials, it has long been the practice to allow the prosecution to introduce a photograph of the victim taken when the victim was alive. For example, a Utah statute (enacted in 1994 to enforce Utah's Victims' Rights Amendment) provides that "[i]n any homicide prosecution, the prosecution may introduce a photograph of the victim taken before the homicide to establish that the victim was a human being, the identity of the victim, and for other relevant purposes." Of course, in a criminal case by the time of sentencing, the defendant has been proven guilty beyond a reasonable doubt, and so issues related to potential bias while determining guilt are no longer in play.
At sentencing, appellate courts have approved of video montages of photographs of a victim and even videos of a victim. For example, in 2009, the California Supreme Court considered the admissibility in a death penalty case of an eight-minute video of the victim and his family enjoying a trip to Disneyland. The Court rejected a defendant's challenge, calling the tape an "awkwardly shot 'home movie'" lacking the elements generally designed to stir up emotions." People v. Dykes, 209 P3d 1, 44-45 (Cal. 2009).
However, such videos can go too far. For example, in 2004, a federal district court excluded a victim video in a death penalty case. The court explained that the video, made for a memorial service, "was about twenty-seven minutes in length and featured over 200 still photographs of the victim, in roughly chronological order, from the time he was born until the time just before his death. The pictures were set to evocative contemporary music, including that of the Beatles and James Taylor." This video, the court concluded, when too far "because its probative value was outweighed by the danger of unfair prejudice, and created a danger of provoking undue sympathy and a verdict based on passion as opposed to reason." United States v. Sampson, 335 F. Supp. 2d 166, 191 (D. Mass. 2004). At the same time, however, the district court noted that other courts had allowed some video clips to be used, but in "each of these cases, the admitted video was brief and found to be probative of some aspect of the victim's life."
An AI-generated statement is simply a technological advance on this tradition of victim videos, and thus helps to address one of the core problems that VIS are designed to address. If no victim statement is allowed, it turns the killer's victim "into a faceless stranger" and thus "deprives the State of the full moral force of its evidence," as the U.S. Supreme Court recognized in Payne. Through the AI-generated statement in this Arizona case, the victim—Christopher Pellkey—was no longer a "faceless stranger" to the proceedings but rather a unique human being whose life the defendant extinguished.
In determining whether an AI-generated statement should be allowed, it is also useful to compare two situations. Suppose the defendant has seriously injured a victim by striking a non-deadly blow. In that case, the victim himself is allowed to deliver a victim impact statement about what happened. For comparison, suppose that the defendant has killed a victim by intentionally striking a lethal blow. In that case, the victim is obviously unavailable to deliver his own statement. An AI-generated statement is simply a technological substitute for the fact that the defendant has criminally chosen to make the victim unavailable. In balancing the equities between an innocent victim and a killer, of course, the equities lie with the victim and his family representatives. Because the defendant has chosen to commit his deadly crime, any doubts should be resolved against him in deciding whether an artificially created substitute for the victim is an appropriate response to the victim's absence . Read More
Claim Can Go Forward Against American Publisher That Allegedly Knew Knew Author It Paid Was Hamas Hostage-Holder
The claim is under the Alien Tort Statute, which allows lawsuits in U.S. courts for aiding and abetting terrorism (among other things).
From Jan v. People Media Project, decided Tuesday by Judge Tiffany Cartwright (W.D. Wash.):
This case arises from the kidnapping of Plaintiffs Almog Meir Jan, Shlomi Ziv, and Audrey Kozlov by Hamas during the terrorist attack of October 7, 2023. Plaintiffs are Israeli citizens who were kidnapped at the Nova Music Festival and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. Defendants are People Media Project, doing business as the Palestine Chronicle, its individual officers Ramzy Baroud and John Harvey, and unnamed Doe Defendants 1 through 10.
Plaintiffs allege that Defendants employed and compensated Aljamal for work as a journalist before and after the October 7 attack, despite knowing Aljamal was a Hamas operative. Plaintiffs assert that through these actions, Defendants aided and abetted their kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute ("ATS") ….
The following facts are those alleged in the amended complaint. Because the Court is considering a motion to dismiss …, Jan's factual allegations must be taken as true and construed in the light most favorable to him ….
Plaintiffs allege that beginning in May 2019, Aljamal worked as a journalist for the Palestine Chronicle, which regularly published his articles. However, "Aljamal also served as an official spokesperson for Hamas's Ministry of Labor" and "Defendants knew that … Aljamal was an operative and official spokesperson for Hamas." For example, Plaintiffs allege that Aljamal's Facebook page included a photo of his son wearing Hamas headbands posted on June 6, 2023, and a graphic that is the symbol for Hamas's internal security bureau. Following October 7, Plaintiffs allege that Aljamal posted on his Facebook page and TikTok account a message supporting the attack. They assert that individual "Defendants regularly viewed and interacted with" Aljamal's social media posts.
After October 7, Aljamal's publications on the Palestine Chronicle "increased exponentially, often publishing two to three pieces per day[.]" And to receive and publish Aljamal's articles, Plaintiffs allege that "Defendants were in consistent, direct, and substantial contact with Aljamal, using electronic and internet means." Specifically, "Defendants used electronic and internet means, including, but not limited to, WhatsApp and Skype, to communicate with Hamas Operative Aljamal following October 7, 2023 to coordinate Defendants' publishing of Hamas propaganda, including the publishing of justifications for Aljamal's imprisonment of Israeli citizens." Plaintiffs further assert that "Defendants knew that Aljamal was a terrorist participating in kidnapping and hostage-taking through their close employment relationship and their personal connections, e.g., Aljamal and Defendant Baroud are from the same hometown in Gaza."
Dating Violence Restraining Order Reversed Because Court Relied on Unauthenticated Anonymous Communications
From Adams v. Cox, decided last week by the Florida Court of Appeal (Judge John MacIver, joined by Judges Harvey Jay and Adrian Soud):
Cox petitioned for injunction for protection against dating violence, alleging that Adams had committed acts of violence against her and that she feared imminent future violence. In her petition, Cox described two incidents of past violence by Adams and claimed that she had recently received harassing phone calls and text messages from unknown numbers, which she believed were initiated by Adams….
At the hearing, Cox testified that Adams had physically attacked her two times during their relationship. Adams, in turn, denied ever harming Cox. Cox also testified that over the months preceding the hearing, she had been repeatedly called or texted by three unfamiliar phone numbers. She stated that one voicemail message left by an unknown caller sounded like Adams's voice, and that some text messages contained personal information (such as her home address and her child's school) that led her to suspect Adams was behind them. Yet Cox admitted she was not certain that Adams was the caller, and she did not present the actual voicemail or text messages as evidence.
For his part, Adams tried to introduce documentary evidence—apparently phone records or other proof—to show that the phone numbers were not associated with him, but the trial court declined to admit these documents. The judge told Adams to "hold on" to his papers and explained, "I need to figure out whether two people should legally be separated from one another. That's why I need to talk to you. Your words are what matter." The court did not permit Adams to call any other witnesses or to authenticate his proof regarding the messages.
Penalty Based Partly on Divorcing Wife's Destroying $1800 Bottle of Scotch
From last week's Ohio Court of Appeals decision in Edelstein v. Edelstein:
Father claimed that Mother denied him the opportunity to retrieve his personal items from the marital home. Father testified he had left behind familial memorabilia, religious heirlooms, and other personal items when he had moved out. Father explained that while he was given a brief opportunity to collect a few of his personal items from the home, Mother never gave him a sufficient opportunity to meaningfully collect his belongings. Mother told Father that she put the items he had left behind in storage and that he would be able to retrieve them the next time she was in Ohio.
Despite communicating to Father that his possessions were in storage and that he would be able to retrieve them, Mother testified that after she had determined that storage was too much of an inconvenience, she called a trash service and had Father's personal property destroyed. Mother admitted that she did not notify Father prior to having his belongings destroyed….
Mother takes issue with the court's $5,000 contempt penalty for having Father's items destroyed. This penalty, however, constitutes an equitable offset, given that Mother denied Father the opportunity to collect his equitable distribution of household goods and furnishings. This offset included all "remaining household goods, keepsakes, and furnishings," which would include the bottle of 1976 Glenrothes Single Malt Scotch. Thus, Mother's claim that the court failed to include the value of the bottle of scotch in the marital assets is without merit….
If you want to celebrate this decision, you can buy such a bottle yourself.
Today in Supreme Court History: May 8, 1884
5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.
Updated draft: The Two Tests of Search Law
"What is the Jones Test, and What Does That Say About Katz?"
I have posted a revised draft of my forthcoming article, The Two Tests of Search Law: What is the Jones Test, and What Does That Say About Katz?, which will be published in the Washington University Law Review. You can download it here, and the abstract is below.
Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts don't know what the difference is between them, however, or whether the Jones test is based on trespass law or the mechanics of physical intrusion. The result is a remarkable conceptual uncertainty in Fourth Amendment law. Every lower court recites that there are two search tests, but no one knows what one test means or how it relates to the other.
This Article argues that the Jones test hinges on physical intrusion, not trespass law. Jones claimed to restore a pre-Katz search test, and a close look at litigation both before Katz and after Jones shows an unbroken line adopting an intrusion standard and (where it has arisen) rejecting a trespass standard. This understanding of Jones is not only historically correct, but also normatively important. How we understand Jones tells us how to understand Katz. The intrusion approach offers an appealing interpretation of both tests that may prevent Katz's rejection by a Supreme Court otherwise inclined to overturn it.
Colorado Federal District Court Issues Additional Alien Enemies Act Ruling Against Trump
The court instituted a preliminary injunction against the Administration's use of the Act to deport Venezuelans.
Earlier today, federal District Judge Charlotte Sweeney of the District of Colorado issued a ruling against the Trump Administration in an Alien Enemies Act (AEA) case. Trump has been trying to use the Alien Enemies Act of 1798 as a tool for deporting Venezuelan migrants with virtually no due process. But the Act can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." In today's decision, Judge Sweeney built on her own earlier ruling imposing a temporary restraining order (TRO) against AEA deportations in her district, and also a recent AEA ruling by a federal district court in Texas. Her new decision replaces the TRO with a longer-lasting preliminary injunction.
Like those other rulings, Judge Sweeney's most recent opinion concludes that none of the requirements for invocation of the AEA has been met. The activities of the Tren de Aragua drug gang (cited by Trump as justification for using the AEA) don't qualify as an "invasion" or a "predatory incursion," and TdA is pretty obviously not a "nation or government" (Judge Sweeney is the sole federal judge to have addressed this latter issue, so far). Moreover, US intelligence agencies have concluded that TdA probably isn't even acting at the direction of the Venezuelan government. It is a private criminal organization.
I have defended the view that "invasion" requires a military attack, in greater detail in my previous writings on the meaning of the term in the AEA and the Constitution. The two meanings are necessarily intertwined, as several federal courts have now recognized.
Judge Sweeney's ruling reaches the right result, and is generally well-reasoned. But there is one regrettable aspect of her analysis, adapted from a recent ruling by Judge Fernando Rodriguez of the Southern District of Texas. Like him, she concludes that the meaning of "invasion" is not an unreviewable "political question," but also suggests that the factual determination of whether an "invasion" exists is. This is irrelevant to the current state of AEA litigation because Trump has not - so far - alleged that a foreign government is invading the US in the sense of launching a military attack. But he could potentially make such an assertion, and I would not put it past this administration to make bogus claims of that sort.
For that reason, among others, my reservations about Judge Rodriguez's reasoning on this point also apply to the Colorado ruling:
Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants simply by asserting Y has happened, even if the claim is false. This is especially dangerous in case of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants)….
[U]nder the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.
It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" exists is pretty obviously false, and pretextual.
Despite this one flaw, the new Colorado ruling is yet another indication of a growing consensus among federal judges that Trump has invoked AEA illegally because "invasion" and "predatory incursion" are forms of organized armed attack. Illegal migration and drug smuggling don't qualify. Both lower-court judges and the Supreme Court have also uniformly rejected the notion that invocation of the AEA isn't subject to judicial review.
The legal battle over the AEA will continue, and this ruling, like other lower-court decisions going against the administration, is likely to be appealed. But, so far, Trump is has suffered an almost unbroken series of well-deserved losses in AEA litigation.
The administration's only notable win to date was on the procedural issue of where AEA detainees must file their claims. And that victory has been undercut by the ongoing willingness of judges' to rule against him on the merits, and certify class actions. For reasons I summarized here and here, class action certification is crucial to ensuring that poor migrants and those with limited English proficiency are able to secure meaningful judicial protection for their rights.
Wednesday Open Thread
What's on your mind?
South Carolina Abortion Restriction May Be Void for Vagueness, But Doesn't Violate Free Exercise Clause
From Bingham v. Wilson, decided today by Judge Richard Gergel (D.S.C.):
In the wake of Dobbs v. Jackson Women's Health Organization (2022), the South Carolina Legislature enacted a ban on abortions after nine weeks of pregnancy. The Act [criminalizes] "perform[ing] or induc[ing] an abortion on a pregnant woman with the specific intent of causing or abetting an abortion" if an embryonic or "fetal heartbeat" has been detected on an ultrasound…. The Act contains three exceptions where abortions may be performed after nine weeks of pregnancy:
- the "Health Exception," which exempts abortions performed "to prevent the death of the pregnant woman," where the physician determines that a "medical emergency" exists, or "to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions";
- the "Fatal Fetal Anomaly Exception," which exempts abortions after a physician determines in his or her "reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth"; and
- the "Rape or Incest Exception," which allows a physician to "perform, induce, or attempt to perform or induce an abortion" if the pregnancy was the result of rape or incest and "the probable gestational age of the unborn child is not more than twelve weeks" after the first day of the patient's last menstrual period ("LMP") and where the physician "report[s] the allegation of rape or incest to the sheriff in the county in which the abortion was performed" within 24 hours of performing the abortion" including the patient's name and contact information."
Court Throws Out Emotional Distress Lawsuit Brought by Jewish Student Over UNLV Anti-Israel Protests
From Gerwaski v. Nevada ex rel. Bd. of Regents, decided Monday by Chief Judge Andrew Gordon (D. Nev.):
Plaintiff Corey Gerwaski sues the University of Nevada, Las Vegas (UNLV), its president, and several advocacy organizations. Gerwaski alleges that demonstrations on the UNLV campus caused him mental anguish, violated his constitutional rights, and caused him to lose his job at the UNLV library. Gerwaski also sues AJP Educational Foundation, doing business as American Muslims for Palestine (AMP), and the UNLV chapter of Students for Justice in Palestine (SJP-UNLV) for aiding and abetting terrorism and for intentional infliction of emotional distress (IIED)….
AMP is a nonprofit organization incorporated in California and headquartered in Virginia. It is "dedicated to advancing the movement for justice in Palestine by educating the American public about Palestine and its rich cultural, historical and religious heritage through grassroots mobilization and advocacy."
Gerwaski alleges that AMP controls the National Students for Justice in Palestine (NSJP) group, of which SJP-UNLV is an affiliate. He further claims that AMP uses NSJP "to operate a propaganda machine for Hamas and its affiliates across American college campuses to influence, wreak havoc and intimidate Jewish students on university campuses across the Nation." According to Gerwaski, NSJP supports Hamas, justifies Hamas's terroristic activities through its rhetoric and messaging, and perceives itself as a part of the group. Hamas, in turn, allegedly welcomes support from NSJP and its affiliates and encourages them to be "part of this battle" in the United States.
The day after Hamas's October 7, 2023 terrorist attack in Israel, NSJP released a "Day of Resistance Toolkit" to students on American campuses and on the internet. The toolkit contained instructions and templates for users to create online announcements to organize protests. Some of the slogans in this toolkit mirror the messaging used by Hamas.
After this toolkit came out, SJP-UNLV organized several protests both on and off the UNLV campus, called for an economic boycott at UNLV, and called for UNLV to divest from investment in Israeli companies. At one of the demonstrations organized by SJP-UNLV, protestors chanted "[f]rom the river to the sea, Palestine will be free" and "[l]ong live the intifada." Gerwaski alleges that these chants call for eliminating the country of Israel and express support for terrorist campaigns.
Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times. Gerwaski serves in the UNLV student government and briefly worked at the UNLV Lied Library. He alleges that he has been exposed to verbal assaults by members of Nevada Palestine Liberation, another nonstudent group, who made hateful, antisemitic comments to him. Gerwaski has elected to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus. Due to the conditions on UNLV's campus, Gerwaski suffered "severe and extreme emotional distress manifested as great humiliation, embarrassment, shame, and other pain and suffering."
Festivus + Jews + Kanye West + Litigation
"Unlike 'Festivus,' the fictional holiday created by Jewish artists, wherein 'worshippers' are permitted to air their personal grievances but once per year," "Ye adheres to an artistic vision in which he is unencumbered to share his grievances at any time of the year—and so he does."
More from the "[Kanye West] is not merely a creator; he is art" motion to dismiss; the motion is dealing with this allegation:
On June 4–5, 2024, Ye sent a series of text messages to Plaintiff that Plaintiff
characterizes as belligerent, abusive, harassing, antisemitic, and otherwise offensive. The messages included statements such as "Shut the fuck up bitch," "Hail Hitler," and "You ugly as fuck," among others. Plaintiff alleges that these messages constituted harassment. Defendants assert that the messages are protected artistic expression …, and were sent in furtherance of Ye's constitutionally protected right to resist unwanted interference with his creative work and his rehearsal of his iconic artistic style of advancing grievances in dramatic vernacular.
Here's the defense lawyers' response:
Kanye West "Is Not Merely a Creator; He Is Art" (Say His Lawyers)
A perhaps somewhat over-the-top argument in a motion to dismiss an employment lawsuit (Doe v. Yeezy, LLC).
The motion itself may have merit as to some of its facets, and certainly raises some interesting legal issues; I look forward to seeing what the court makes of it. An excerpt:
5. Plaintiff Jane Doe, a self-proclaimed Hollywood publicist, aggressively sought to represent Ye, fully aware of his reputation as the world's most provocative artist. Retained in late 2023 to promote Vultures Vol. 1, she publicly positioned herself as Ye's media liaison. The irony is striking: the compensation she received—and now seeks to augment through this litigation—was generated exclusively by the controversial art she herself promoted. Having knowingly immersed herself in Ye's unapologetically boundary-defying artistic environment, she now claims retroactive offense at performative expressions such as "I Am A NAZI" and "You Ugly as Fuck"—works that plainly reflect Ye's artistic critique of censorship, identity, and beauty standards, and which were wholly consistent with his public artistry and presentation long before Plaintiff explicitly sought employment….
40. In January 2024, Ye texted Plaintiff, "I Am A NAZI," in response to her unsolicited suggestion that he publicly condemn Nazism amid controversy over the Nazi-inspired cover art for Vultures Vol. 1. Plaintiff alleges this message constitutes antisemitic harassment and discrimination.
41. Vultures Vol. 1, which Plaintiff was hired to promote, featured aesthetic choices reminiscent of imagery related to Nazism, invoking debates about artistic expression, antisemitism, and censorship.
