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 (any by the EPA, not the FWS). 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.
[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.
Judge Kymberly Evanson (W.D. Wash.), in yesterday's G.P. v.Arevalo, is largely unmoved by the argument, though she's also hesitant to throw out the client's case just because of that (emphasis added):
Plaintiff G.P. moves for an extension of the deadlines to file opposition briefs to three motions to dismiss …. The first two of these deadlines have already passed.
G.P.'s attorney states that the reason he was unable to meet the deadlines, confer with opposing counsel about an extension, or request an extension before now is that he has been residing in Alba, Italy for the last year and construction on his street has interrupted his "internet and telecommunications service" since about June 1, 2026. G.P.'s counsel does not suggest that he has been unable to access any source of internet during the last month, nor would such a claim be credible. Indeed, he has filed several briefs or other documents since the interruption at his residence began.
Although the Court is not yet persuaded that G.P.'s counsel has demonstrated diligence or good cause for his tardy request to extend the deadlines, denying his request would amount to terminating sanctions because the motions to dismiss at issue are dispositive. The Court is disinclined to impose such a sanction at this time.
Instead, Defendants Meta, Arevalo, and Jimenez are DIRECTED to notify the Court no later than July 6, 2026, whether they will stipulate to—or intend to oppose—G.P.'s requested extension and whether they request a commensurate extension of their reply deadline.
And the parties have indeed stipulated to the extensions.
My view: If you want to spend June in lovely Alba, Italy, "famous for its white truffle and wine production" and "the White Truffle Capital of the World," you absolutely should! But if you also want to practice law during that month, you need to have a Plan B for any Internet outages you might be facing.
From Tuesday's Wisconsin Court of Appeals decision in State v. Brister, by Judge Sara Geenen, joined by Chief Judge Joseph Donald and Judge Pedro Colón:
On June 22, 2023, Brister was sentenced in two unrelated cases. In Milwaukee County Circuit Court Case No. 2020CF367, which is not part of this appeal, Brister was sentenced for possessing a firearm as a felon ("the 2020 case"). He illegally possessed a gun while also committing acts of domestic abuse against his live-in girlfriend, Marie.
In Milwaukee County Circuit Court Case No. 2021CF3563, the case before us on appeal, Brister was sentenced for child neglect and OWI (1st) [Operating While Intoxicated] with a minor in the car, after Brister was pulled over for speeding and weaving on I-43 while Diana, then two years old, was unsecured in the backseat of the car. Diana was not injured, so the charge of child neglect alleged that harm would be a natural and probable consequence of the neglect. During the traffic stop, police found a loaded gun under the rear passenger seat. Brister called Marie to pick Diana up from the traffic stop, in violation of a no-contact order that had been imposed while he was released on bail in the 2020 case…. Brister's criminal record … included 2006 convictions for burglary and uttering a forgery, a 2009 conviction for marijuana possession, and three convictions for burglary in 2011….
The circuit court's sentencing remarks focused on the gravity of the offenses, noting the danger to which Brister had exposed his daughter and the seriousness of twice having a gun while intoxicated. The court summarized the most relevant sentencing factors when rejecting Brister's recommendation for probation:
The first thing I have to consider is whether probation is appropriate. I can't think of anything further from appropriate, than putting you on probation, for these offenses. You have demonstrated, by your behavior, not only by your criminal record, not only by your incredibly dangerous behavior in not following court orders and having that firearm and being drunk while you have the firearm, and battering [Marie], engaging in disorderly conduct. Not only that, but then adding on, that you needed to neglect and endanger your two-year-old while you were driving with her, again drunk, at incredibly high speeds, and having the firearm accessible to her. It defies description.
Oregon Right to Life … has one mission: to advocate for pro-life positions based on Judeo-Christian values. This singularly focused nonprofit, by operation of Oregon law, and in particular the religious exemption available to lawfully avoid compliance with this law, would [be forced] to purchase health insurance for its employees that would cover abortions and abortifacients—the very things the nonprofit exists to oppose on religious grounds. The Supreme Court, as this Opinion explains, has made clear that a nonprofit in Plaintiff's position must prevail on its as-applied challenge to the "religious employer" exemption….
The Oregon Legislature enacted RHEA to "ensure[] that Oregonians have access to comprehensive reproductive health care" including abortion and contraceptives, regardless of their income or insurance coverage. RHEA requires all health benefit plans in Oregon to "provide coverage" for abortion and "any contraceptive drug, device or product approved by the United States Food and Drug Administration." Further, a health benefit plan "may not infringe upon an enrollee's choice of contraceptive drug, device or product and may not require prior authorization.
RHEA exempted (among other things) "religious employers" "whose purpose is the inculcation of religious values," but Oregon Right to Life wasn't covered because its "purpose is prolife advocacy, not inculcating religious values, and [because Plaintiff] doesn't primarily serve persons sharing its religious tenets." The court held that limiting the religious exemption this way involved unconstitutional discrimination among religious objectors:
This year's World Cup has largely avoided the stadium subsidies, forcible displacement of people, human rights violations, and other evils historically associated with the event.
Although I'm a big sports fan, I have long been critical of the Olympics and the World Cup for a variety of abuses, such as massive stadium subsidies that victimize taxpayers, forcible displacement of people in order to build stadiums, and providing a propaganda showcase for repressive authoritarian regimes, such as Russia and Qatar (hosts of the last two World Cups). Fortunately, this year's World Cup - co-hosted by Canada, the US, and Mexico - has mostly avoided these problems, at least when it comes to the United States. Though not quite entirely, as we shall see. The key factors are that the US host cities used existing stadiums, and that strong protections for freedom of speech largely foreclosed the censorship and repression common in authoritarian host states.
Back in 2022, at the time of the last World Cup hosted by Qatar, I outlined several problems that needed to be fixed in order to avoid various evils associated with past World Cups and Olympic games. Let's see how the US has done on each one:
1. No public subsidies. Let the games be funded purely by private organizations and sponsors, as was largely the case for the successful 1984 Olympics in Los Angeles. That way, no one has to pay for the games, except those who profit from them and the audience that voluntarily chooses to watch.
This has largely been achieved, primarily because US host cities have used existing stadiums, obviating the need to build new ones. This eliminates by far the biggest cause of the World Cup's exploitation of taxpayers. There have still been some public expenditures on things like traffic management and security. But protecting people against crime and terrorism, and managing public infrastructure are basic functions of government that the state provides for events of all kinds. There is no good reason to exclude major sporting events. Anarchists (including libertarian ones) can consistently condemn such spending. But that goes to philosophical issues that go far beyond sports events.
2. No forcible displacement of residents, private businesses, or civil society organizations. We can and should hold sports events without kicking innocent people out of their homes.
As far as I can tell, this has been entirely avoided. And it's in sharp contrast to the record of many past Olympic and World Cup hosts, such as Brazil and China.
3. No hosting rights for authoritarian human rights violators. There are plenty of possible Olympic venues that aren't controlled by likes of Vladimir Putin and Xi Jinping, or the Emir of Qatar. Denying these types of rulers hosting rights won't fundamentally alter their regimes. But it will at least damage their image and deny them propaganda victories.
Even under Trump, the US is nowhere near as bad as Russia, China, or Qatar. The fact that I regularly denounce Trump and even helped litigate a case against him in the Supreme Court, with little fear of reprisal, is one small but telling indication of the difference. That said, Trump's cruel and discriminatory immigration policies (which victimize US citizens as well as recent migrants), and his assaults on freedom of speech make the contrast smaller than it should be.
So far, however, Trump does not seem to have derived much, if any, propaganda benefit from hosting the Cup. That may be in part because his attention is focused elsewhere.
4. There must be full freedom of speech at all competition venues and in all interactions between competitors, media, and the local population. At the very least, athletes, journalists, and spectators should be entirely free to criticize the host government and its policies (or any other government for that matter).
This standard has also largely been met, thanks in large part to the First Amendment and its strong protection for speech. The city of Seattle deserves credit for refusing the Egyptian and Iranian governments' demands to bar local Pride celebrations, which happened to coincide with the match between these two countries' teams. This is a sharp contrast with Russia's and Qatar's authoritarian restrictions on pro-LGBT speech.
The Trump Administration's speech-based deportations and exclusions of immigrants and visitors have cast a pall over this issue. But courts have so far largely ruled against Trump on these issues. And it does not appear that any World Cup players, fans, or officials have been deported or barred on this basis (though some fans and a referee have been subjected to other arbitrary visa restrictions).
5. There must be no "public health" measures blocking normal human interaction between athletes, members of the media, and residents of the host city. Such measures defeat the whole point of having the competition in a particular country in the first place.
I will add that the World Cup has generated many heart-warming moments of Americans welcoming foreign players and fans, which has helped the world to see that most Americans do not share the xenophobic nationalism of the Trump Administration.
In sum, the US record on the types of issues and injustices that have marred past Olympics and World Cups is by no means perfect. And the structural corruption of FIFA (the organization running the Cup) remains. The organization has a history of fleecing taxpayers, conniving in forcible displacement of residents to build stadiums, and kowtowing to authoritarians. There is no guarantee that it won't repeat past abuses during future Cups. The same goes for the International Olympic Committee, which runs the Olympics.
But the current World Cup has been much better in crucial respects than those held by other recent hosts, such as Brazil, Russia, and Qatar. We should learn from that experience, and liberal democracies should pressure FIFA and the IOC to adopt systematic reforms that will permanently preclude these abuses.
Plaintiff Accountability Now is an unincorporated association that holds a permit from the NPS [National Park Service] to conduct "a demonstration near the George Meade Statue on Constitution Avenue in Washington, D.C." "Volunteers maintain the demonstration twenty-four hours a day, seven days a week" at which they "engage in face-to-face conversations with members of the public[] to call attention to the rise of fascism in the United States and [to] demand the impeachment of President Trump." Plaintiff's "current permit was issued on April 13, 2026, and is valid through August 12, 2026[,]" and Plaintiff "intends to obtain another permit when the current permit expires, at the same or another location on NPS-managed land in the District of Columbia."
On February 24, 2026, in response to reporting "that the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor[,]" Plaintiff began to display two new signs at the demonstration. One sign reads: "TRUMP RAPED LITTLE GIRLS." The other reads: "KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS." According to Plaintiff, "[t]he display of those signs has engendered numerous conversations between volunteers and passersby regarding President Trump's behavior, morality, and fitness to continue in office." … [Plaintiffs allege that] NPS agents requested that the two child rape signs be taken down, although it is not clear whether the NPS officials provided a reason for the request during the conversation…
Under the well-known standard articulated in Miller v. California (1973), speech is obscene if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest," (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state [or federal] law," and "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value…. Understandably, Defendants have now conceded that the two signs at issue are not obscene as to adults. Indeed, to argue otherwise would be to suggest that virtually every news outlet in the country violates the obscenity laws every time it refers to allegations of rape or rape of a minor.
Lights along the beach can create problems for turtles. Bright lights at night can disorient sea turtle hatchlings and prevent them from crawling into the sea. Sufficient beachfront lighting might even constitute a prohibited "take" of Loggerhead sea turtles and other turtle species listed under the Endangered Species Act.
Assume that the erection or maintenance of beachfront lighting in turtle habitat is a take under Section 9 of the ESA. Could a state or local government's decision to allow such beachfront lighting--either by permitting it or perhaps just failing to prohibit it--also be a take under Section 9? And, if so, could the ESA require a state or local government to take action against private landowners who erect or maintain beachfront lighting when sea turtles are reproducing? Would such a requirement be constitutional? I think not.
USFWS
Holding state and local governments liable under the ESA for licensing, permitting, or failing to control private conduct violates the anti-commandeering principle, or so I argue in my article, "Conservation Commandeering," forthcoming in a Catholic University Law Review symposium. Nonetheless, courts impose this sort of vicarious liability on state and local governments with some frequency, most often in response to citizen suits filed under the ESA by environmental groups. Cases have involved state agency's failing to impose sufficiently stringent limitations on fur trapping or fishing, among other things. In this post I noted a case pending in the U.S. Court of Appeals for the Eleventh Circuit concerning Florida's alleged failure to adequately regulate septic systems. At the moment, most district courts to have considered such claims have rejected commandeering-based arguments. In my view, they are wrong, and imposing liability in such cases is hard to square with the Court's federalism jurisprudence.
The Endangered Species Act (ESA) prohibits anyone-including state and local governments-from "taking" protected species without a permit. Courts have extended this prohibition to impose vicarious liability on state and local governments, holding that a government's failure to regulate private activities sufficiently harmful to listed species may itself constitute an illegal take. This Article argues that such "conservation commandeering" cannot be reconciled with the Supreme Court's anti-commandeering jurisprudence. Under current doctrine, the federal government may not compel state and local governments to enact or administer regulatory programs implementing federal law, nor may it prohibit states from licensing or authorizing private activity. Requiring states to restrict private conduct as a condition of avoiding ESA liability does precisely what these decisions forbid. This Article further argues that enforcing the anti-commandeering principle need not undermine species conservation. The ESA's cooperative federalism provisions and existing tools for inducing voluntary state participation offer workable alternatives-ones that respect both constitutional structure and the practical importance of state and local cooperation in protecting listed species.
I often speak of June 26, 2008, the day that District of Columbia v. Heller was decided. Yet, I still clearly remember the day before when the Court decided Kennedy v. Louisiana. Justice Kennedy declared that there was a "national consensus" against executing child rapists, and accordingly, the Eighth Amendment prohibits such punishment. Two decades later, I am still appalled by that decision. It has to be wrong as an originalist matter, as the meaning of the Eighth Amendment cannot change based on what states do. And Kennedy offered no objective basis to determine what the "national consensus" even was.
Maybe now is the time to reconsider this precedent. Judge Josh Devine (EDMO) takesKennedy as a starting point, and suggests that the facts on the ground have changed.
Kennedy itself said that the question of constitutionality changes over time and is based on the social "norms that 'currently prevail.'" 554 U.S. at 419 (emphasis added; citation omitted). And Kennedy made clear that those standards can change in as few as 15 years, leading to different bottom-line outcomes. Id. at 432.
Today's standards look quite different from those in 2008. In the last three years, at least six States enacted new legislation permitting capital punishment for the crime of child rape. And following recent changes in technology, the rate of sexual offenses against children has skyrocketed. These crimes cannot accurately be described solely as crimes against individual victims. The images and videos too often produced from these crimes persist on the internet for decades—if not forever—so they harm not just the individual victims, but society as a whole. The Supreme Court in 2008 found a national consensus against capital punishment for child rape and concluded that the most decent thing was to take capital punishment off the table. But in the face of extraordinary increases in crimes against children, plus paradigm changes in the legal and technological landscape, policymakers and prosecutors may determine that the most decent thing is to impose the most serious penalty on those who harm the most innocent. Kennedy does not prohibit that development. Unless a criminal offender satisfies an extraordinarily demanding evidentiary burden, Supreme Court precedent permits imposing capital punishment on those who commit nonhomicide sexual offenses against children.
I appreciate this approach. Justice Kennedy made up a nonsense standard, and lower courts are well within their right to follow it. Let the Supreme Court clean up this mess.
There is some angst that Devine offered an advisory opinion. I don't see it. There is a live case-or-controversy: what is the punishment for this offense. The judge is offering his view of how the sentencing process will proceed. It is not uncommon for judges to talk to attorneys in advance of a sentencing, or any other proceeding. Indeed, at presentencing conferences, Judges routinely articulate their understanding of the relevant sentencing guidelines, and offer the parties a chance to respond. Lawyers steeped in appellate practice may be unfamiliar with such mundane processes at the trial court.
