The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Justice Kavanaugh's concurrence in FCC v. Consumers' Research is one of his most significant separate writings. He lays out a roadmap for how he sees the separation of powers, and in particular the removal power cases.

First, as I was reading Justice Kavanaugh's concurrence, I could hear the voice of a former White House lawyer. Indeed, Kavanaugh stresses how former Justices who served in the Executive Branch Court accepted the "intelligible principle" test:

Notably, the intelligible principle test was accepted and applied over the years by Justice Scalia, Chief JusticeRehnquist, and Chief Justice Taft—three jurists who, based on their Executive Branch experience and judicial philosophies, deeply appreciated the risks of undue judicial interference with the operations of the Presidency.

Second, Kavanaugh repeats at several points that the deferential "intelligible principle" test respects the separation of powers. How? To ensure the President has the latitude to faithfully execute the laws:

To be clear, the intelligible principle test is not toothless. But it does operate in a way that respects the President'sArticle II authority to execute the laws—that is, to exercise discretion and policymaking authority within the limits setby Congress and without undue judicial interference. See, e.g., Whitman, 531 U. S., at 472–476; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate").

It's not just about Congress, it is also about the President.

Third, Kavanaugh suggests that there is less of a need to reinvigorate the non-delegation doctrine, in light of the Court's precedent decisions overruling Chevron and expanding the major questions doctrine.

Second, many of the broader structural concerns about expansive delegations have been substantially mitigated by this Court's recent case law in related areas—in particular (i) the Court's rejection of so-called Chevron deference and (ii) the Court's application of the major questions canon of statutory interpretation. Cf. Paul v. United States, 589 U. S. ___ (2019) (statement of KAVANAUGH, J., respecting denial of certiorari).

As I'll explain another post, I think Justice Kavanaugh has signaled that the Gundy moment has passed. We're stuck with "intelligible principles."

Fourth, Kavanaugh explains that the non-delegation doctrine has no place in the context of foreign affairs.

Third, in the national security and foreign policy realms, the nondelegation doctrine (whatever its scope with respect to domestic legislation) appropriately has played an even more limited role in light of the President's constitutional responsibilities and independent Article II authority. See Loving, 517 U. S., at 772–773; Youngstown, 343 U. S., at 636, n. 2 (Jackson, J., concurring); Zemel v. Rusk, 381 U. S. 1, 17–18 (1965); United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319–322 (1936); Marshall Field & Co. v. Clark, 143 U. S. 649, 691 (1892). In "the area of foreign affairs, Congress 'must often accord to the President a degree of discretion and freedom from statutory restrictionwhich would not be admissible were domestic affairs alone involved.'" Industrial Union, 448 U. S., at 684 (Rehnquist, J., concurring in judgment) (quoting Curtiss-Wright, 299 U. S., at 320).

It has been argued that the travel ban violates the non-delegation doctrine. I don't think Justice Kavanaugh would accept this argument.

Kavanaugh further argues that the major questions doctrine should not be applied in the foreign policy context:

In addition, the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas. On the contrary, the usual understanding is that Congress intends to give thePresident substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains. See Youngstown, 343 U. S., at 635–638 (Jackson, J., concurring); see also Hamdi v. Rumsfeld, 542 U. S. 507, 519 (2004) (plurality opinion); Dames & Moore v. Regan, 453 U. S. 654, 678–679 (1981); Zemel, 381 U. S., at 8–9; Al–Bihani v. Obama, 619 F. 3d 1, 38–41, 48–52 (CADC 2010) (Kavanaugh, J., concurring in denial of rehearing en banc); C. Bradley & J. Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1789–1801 (2024). The canon does not translate to those contexts because of the nature of Presidential decisionmaking in response to ever-changing national security threats and diplomatic challenges. Moreover, in those areas, the President possesses at least some independent constitutional power to act even without congressional authorization—that is, in Youngstown category 2.

I wonder if this passage is a preview of Kavanaugh's view of the tariffs case. I'm not sure if the tariff orders fall within the ambit of "foreign policy." They are about foreign commerce, but this is an area where Congress can legislate. And I don't know that the President has an independent authority that would bring us into a Youngstown Zone 2 posture.

Fifth, FCC v. Consumers' Research illustrates how Justices Gorsuch and Kavanaugh diverge. The focus of President Trump's first two appointments to the Supreme Court was the administrative state. But they do not approach this issue from the same angle. Justice Gorsuch found a violation of the "intelligible principle" doctrine, while Justice Kavanaugh did not. The difference, I think, stems from how these two Justices understand political accountability. According to Justice Gorsuch, a robust version of the non-delegation doctrine ensures the accountability, and supremacy, of the legislative branch.

But for Justice Kavanaugh, the accountable President, and those agencies under his supervision, can be trusted to exercise discretion.

Critiques of broad congressional delegations sometimes focus on officials described as "unaccountable bureaucrats." But that label does not squarely fit delegations to executive agencies. In those circumstances, the President and his subordinate executive officials maintain control over the executive actions undertaken pursuant to a delegation.And the President is elected by and accountable to all the American people.

However, Justice Kavanaugh would approach this issue differently for an independent, "unaccountable" agency:

Rather, the problems with delegations to "unaccountable"officials primarily arise from delegations to independent agencies. Independent agencies are headed by officers whoare not removable at will by the President and who thus operate largely independent of Presidential supervision and direction. Those independent agency heads are not elected by the people and are not accountable to the people for their policy decisions. Unlike executive agencies supervised and directed by the President, independent agencies sit uncomfortably at the outer periphery of the Executive Branch. Although this Court has thus farallowed such agencies in certain circumstances, they belong to what has been aptly labeled a "headless Fourth Branch." Freytag v. Commissioner, 501 U. S. 868, 921 (1991) (Scalia, J., concurring in part and concurring in judgment) (quotation marks omitted); see Humphrey's Executor v. United States, 295 U. S. 602, 628–629 (1935); see also In re Aiken Cty., 645 F. 3d 428, 439–446 (CADC 2011) (Kavanaugh, J., concurring).

Sixth, and perhaps most importantly, Justice Kavanaugh shows his cards in Wilcox. He explains there are two ways to handle independent agencies--allow the heads to be removed at will or police their delegation of authority:

There are at least two possible solutions to the problem caused by congressional delegations of authority to independent agencies. One is to overrule (or significantly narrow) Humphrey's Executor so that the heads of all or most independent agencies are removable at will by the President, and thus supervised and directed by the President. A second option would be to apply a more stringent version of the nondelegation doctrine to delegations to independent agencies. For example, to take one possibility, independent agencies might need to first submit proposed rules to Congress for approval in the legislative process before the rules can take effect. I will not prolong the point here. Congressional delegations of policymaking authority to independent agencies raise significant Article II issues. In an appropriate case, this Court should address that problem.

Why "or" and not "and"? I think both of these solutions are viable. But I doubt Justice Kavanaugh agrees. If he is willing to overrule Humphrey's Executor, then there is no need to police delegation. But if the Court upholds Humphrey's Executor, then Justice Kavanaugh would more carefully scrutinize whether Congress delegated too much discretion to these unaccountable agency directors. This tease sounds like he is telling his colleagues what he is willing to do.

With Kavanaugh on board, I am certain that Justices Thomas, Alito, and Gorsuch would level up the intelligible principles test for independent agencies. But you need one more to play ball. It is true that Chief Justice Roberts joined Justice Gorsuch's Gundy dissent, but I never thought he actually believed it. It was a free vote, and he could keep his options open for the future. Remember that Justice Alito did not join the Gundy dissent, because sex offenders. And Justice Kavanaugh did not participate in that case, which was argued on October 2, 2018. Kavanaugh should have been confirmed in time for the start of the term, but there were delays, as readers will recall.

What about Justice Barrett? As usual, she said nothing. Would she join an opinion giving teeth to the non-delegation doctrine for independent agencies? I am skeptical. There is nothing close to the scholarly consensus that she would require to go that far. What is the theory, she will ask? I still haven't gotten to writing about CASA, but this opinion doesn't really change how ACB approaches constitutional issues.

In Employment Division v. Smith, Justice Scalia identified the concept of hybrid rights: a restriction that targets two constitutional rights would be reviewed with heightened scrutiny. For example, a ban on saying "Merry Christmas" would offend both the freedom of speech and the free exercise of religion. The hybrid rights doctrine was a useful way for Justice Scalia to distinguish the outcome in Smith with earlier free exercise clause cases that applied heightened scrutiny. Yet, this doctrine never quite caught on in the Free Exercise context.

Still, the hybrid rights doctrine always made sense to me as a logical matter. Sometimes the whole is greater than the sum of the parts. Even if individual features of some policy are barely constitutional, when those features are combined, the policy becomes unconstitutional. The Court employed this reasoning in Free Enterprise Fund, in which the two layers of insulation triggered a violation of the Appointments Clause.

In two recent separation of powers cases, the Fifth Circuit adopted this sort of combination logic.

In CFSAA v. CFPB, the Fifth Circuit found that several factors of the structure of the CFPB, when combined, violated the Appropriations Clause:

Taken together, the Bureau's express insulation from congressional budgetary review, single Director answerable to the President, and plenary regulatory authority combine to render the Bureau "an innovation with no foothold in history or tradition." Seila Law, 140 S. Ct. at 2202.

And more recently, in Consumers' Research v. FCC, the en banc Fifth Circuit found that the combination of factors concerning the universal fee violated the non-delegation doctrine

Seila Law and Free Enterprise Fund thus evince a general principle that, with respect to the separation of powers at least, two constitutional parts do not necessarily add up to a constitutional whole. Cf. Aristotle, Metaphysics, in 1 Works of Aristotle 569 (Mortimer J. Adler ed., W. D. Ross trans., 1990) (observing "the whole is" often "something besides the parts"). Rather, reviewing courts must consider a government program holistically, with an eye toward its compatibility with our constitutional history and structure. See Seila L., 591 U.S. at 222.

Yet, in both cases, the Supreme Court reversed.

Last term, in CFPB v. CFSAA, the Court found that the structure of the CFPB was not so unprecedented, and there was no violation of the Appropriations Clause. Justice Alito, in dissent, reaffirmed the combination logic:

By addressing the individual elements of the CFPB's setup one-by-one, the Government seeks to divert attention accountability to Congress. Elements that are safe or tolerable in isolation may be unsafe when combined. In the case of the CFPB, the combination is deadly. . . . In sum, the CFPB's unprecedented combination of funding features affords it the very kind of financial independence that the Appropriations Clause was designed to prevent.

This term, in FCC v. Consumers' Research, Justice Kagan expressly rejected combination logic, or what she calls the "combination theory":

There is an exception to the mootness doctrine, known as "Capable of repetition, yet evading review." The most prominent example of this doctrine occurs in abortion cases. A pregnancy lasts about nine months, while a challenge to an abortion restriction lasts much longer. The courts have allowed such litigation to continue, even after the pregnancy has completed.

This test is hard to satisfy. It is far easier for courts to find a particular dispute is moot, especially when an appeal arises months or years later. Indeed, many courts have imposed limitations on the doctrine. For example, the D.C. Circuit and other circuits have held that a plaintiff can only invoke the doctrine if they sought a preliminary injunction, or sought a stay of an adverse ruling.

For example, in Newdow v. Roberts (2010), Michael Newdow sought to prevent Chief Justice Roberts from issuing the constitutional oath, which included the phrase "So help me God," to then-President-Elect Obama. But by the time the D.C. Circuit decided the case in May 2010, the dispute had become moot. The panel opinion, per judge Janice Rogers Brown, found the controversy became moot. (Then-Judge Kavanaugh concurred in the judgment.)

Even if we assume plaintiffs' challenge is capable of repetition, they are barred from asserting it evaded review because plaintiffs failed to appeal the district court's denial of their preliminary injunction motion. Had plaintiffs pursued an appeal of that denial and had the preliminary injunction been granted, their case would not have become moot. This circuit—along with every other circuit to have considered the issue—has held that "a litigant who could have but did not file for a stay to prevent a counter-party from taking any action that would moot his case may not, barring exceptional circumstances, later claim his case evaded review." Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C.Cir.2008) (citing consistent cases from other circuits).

Or at least that was the rule. In FCC v. Consumers' Research, the Supreme Court discarded that standard. Indeed, Justice Kagan's majority opinion rejected it in a mere footnote:

When we granted certiorari, we asked the parties to address whetherthis case is moot. The parties agree that it is not moot, and we do too. The relevant facts are as follows. Consumers' Research filed suit to avoid payments arising from the contribution factor that the FCC set for the first quarter of 2022. But by now Consumers' Research has made those payments, and a court might not be able to order a refund. Assuming not, the case would be moot—except that it qualifies as "capable of repetition, yet evading review." Kingdomware Technologies, Inc. v. United States, 579 U. S. 162, 170 (2016). A given contribution factor is in effectfor only three months, a period "too short to complete judicial review of [its] lawfulness." Ibid. And "it is reasonable to expect" that Consumers'Research will have to make the same kind of payments again. Ibid. So the case, as the Fifth Circuit concluded, is not moot. See 109 F. 4th 743, 753 (2024). Several other courts of appeals would have arrived at the opposite conclusion, because they require a party to seek preliminary relief in order to avail itself of the capable-of-repetition rule. See, e.g., Newdow v. Roberts, 603 F. 3d 1002, 1008–1009 (CADC 2010), cert. denied, 563 U. S. 1001 (2011). But our decisions have never hinted at such a requirement. See, e.g., Kingdomware Technologies, 579 U. S., at 170; SEC v. Sloan, 436 U. S. 103, 108–110 (1978). And for good reason: The "capable of repetition" rule applies because of the nature of some controversies, not because of the parties' litigating decisions.

As a matter of first principles, I'm not sure this statement is correct. When a complaint is filed, it is usually known in advance when relief is needed by. Indeed, the Supreme Court has rebuked a federal judge for not ruling on a complaint in a manner of hours. Why should the Court make an exception for the usual rules for a Plaintiff who does not seek expedited relief? PIs and TROs are the normal course of litigation nowadays.

In any event, Justice Gorsuch's dissent agreed with Kagan on this point, so the Court is unanimous:

When granting certiorari, we also asked the parties to address whether this dispute is moot. I agree with the Court that it is not. See ante, at 10, n. 1.

This holding seems like a fairly significant FedCourts ruling that was decided with little analysis. Indeed, this should make it far easier to invoke the "capable of repetition" exception, even for plaintiffs who fail to seek a PI.

I think this ruling will discourage plaintiffs from seeking expedited relief, even when expedited relief is actually needed. Then, months or even years later, an appellate court can re-open the controversy based on an exception to the mootness doctrine.

I agree with Judge Brown in the Newdow case: "It is clear the principle of Armstrong requires a plaintiff to make a full attempt to prevent his case from becoming moot, an obligation that includes filing for preliminary injunctions and appealing denials of preliminary injunctions." Maybe Justice Kagan considered these issues and rejected them, but there is so little reasoning. I think the Court may have erred here.

I continue to make my way through the final decisions of the term. Next up is Gutierrez v. Saenz. At first blush, this is the sort of case you might skip over. Can a convicted murderer sue the District Attorney under Section 1983 to force him to test potentially exonerating DNA evidence? This dispute turns, in part, on whether the District Attorney's refusal to test the DNA deprives the defendant of life, liberty, or property, without due process of law. To be clear, the Defendant was afforded more than the process he was due at the criminal trial, through the appellate process, and through collateral review. The constitutional question presented here is whether the refusal to test the DNA violates the Due Process Clause.

The Fifth Circuit panel did not reach the merits. Rather, the panel found that the Defendant lacked standing to bring the Section 1983 claim. The Supreme Court, by a vote of 6-3, reversed the lower court. Justice Sotomayor's majority opinion found that the Defendant had standing to bring the claim.

Justice Barrett concurred in judgment. She thinks the lower court misapplied Reed v. Goertz, but wrote that the Court's analysis "muddies the waters of standing doctrine." I wish the Process Formalist would have written more than a paragraph to explain why. But this is all we got.

Justice Alito dissented, joined by Justices Thomas and Gorsuch. Justice Thomas wrote a solo dissent that was enlightening and thought provoking: what do "life, liberty, or property" mean in the Due Process Clause? In particular, he addresses a question I've long wondered: what exactly is a "liberty interest?" This opinion raises similar issues as Thomas's Medina concurrence, which challenges the breadth of Section 1983.

First, Thomas returns to the themes of his Obergefell dissent with the meaning of "liberty." At common law, "liberty" referred to a freedom from physical restraint. Thomas cites Magna Carta, Coke, Blackstone, and other foundational sources.

This conception of liberty, however, was expanded during the Lochner era:

The original meaning of "liberty" in the Fourteenth Amendment was likely far narrower than our precedents currently hold. The term originally appears to have referred only to freedom from physical restraint. But, in the Lochner era, the Court began to hold that "liberty" includes fundamental rights generally. See Lochner v. New York, 198 U. S. 45 (1905). This Court has since adhered to that broader meaning.

Does Justice Thomas think the Lochner-era precedents concerning "fundamental" rights are consistent with the original meaning of the Fourteenth Amendment? Thomas does not say so expressly. He does say that the meaning of "liberty" in the Fifth and Fourteenth Amendment were the same. And he criticizes the notion of substantive due process. But he doesn't mention the Privileges or Immunities Clause here. Then again Thomas also seems to accept the list or "pre-political" rights from Meyer v. Nebraska, at least as a matter of precedent.

Co-blogger Josh Blackman here acknowledges that he hasn't been following the legal developments in the TikTok case too closely, and that his reaction to the Attorney General's claim that the President had "nullified the legal effects of a statute passed by large bipartisan majorities in 2024" is "schaudenfreude."

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA. I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter. President Obama found ways to disregard laws he didn't like through hyper-creative means, but since those laws accomplished "positive" goals, everyone looked the other way.

I haven't followed the developments too closely, either - though close enough to recognize that Trump is - again - defying the explicit, express command of the law.[1]

[1] The statute establishing the TikTok ban authorized the president to grant a "1-time extension of not more than 90 days" with respect to the date on which this subsection would otherwise apply" - that is, up until April 20 - but only if the president certifies to Congress concrete progress toward divestiture of TikTok—including "binding legal agreements to enable execution" of divestiture "in place." The President recently announced his third "extension" of his non-enforcement order, this time up until September 17, 2025.

Personally, I'm super-excited to see which of our President's billionaire buddies will get handed this multi-billion dollar gift - operational control over TikTok, at some huge discount from the market price, all tidily negotiated with the Chinese by you-know-who. [The smart money is, apparently, on Larry Ellison of Oracle]. What's he going to get in return?! Can't wait to see. And I'm hopeful that this will help people see this grift for what it is.[*2]

[*2]On a number of occasions, Trump has indicated that there is a connection between the tariff negotiations and getting the Chinese to approve a TikTok sale. [See e.g. here] Something like: OK, I'll lower the tariff on toys from 50% to 40%, but only if you get ByteDance to sell TikTok to my pal [insert favored billionaire here] at 25% off.

I'm actually beginning to think that this helps explain much of Trump's erratic (to put it mildly) tariff policy, the whole point of which, it is now becoming pretty clear, was to get leaders from every country in the world to come to the President and beg for his blessing (and maybe throw in a hotel/golf club building permit or two). Thank you, Godfather!

But all that is neither here nor there. What I really want to talk about is schadenfreude and what-about-ism. Read More

I'll admit, I have not followed all of the legal developments in Trump 2.0 carefully. During the first administration, I closely tracked nearly every policy and district court ruling. It was exhausting. This time around, I've triaged. If I've written about something, it means I am following the issue. If I haven't written about it, that means I am not following the issue. Please do not take my silence on an issue as a reflection on whether I agree or disagree with any particular position.

One such issue that I've let go is TikTok. I wrote about the Supreme Court's (quickly forgotten) decision, President Biden's outgoing order, and President Trump's incoming order. But since then, I haven't tracked the issue.

Recently, Charlie Savage published an article in the Times titled "Trump Claims Sweeping Power to Nullify Laws, Letters on TikTok Ban Show."

Attorney General Pam Bondi told tech companies that they could lawfully violate a statute barring American companies from supporting TikTok based on a sweeping claim that President Trump has the constitutional power to set aside laws, newly disclosed documents show.

In letters to companies like Apple and Google, Ms. Bondi wrote that Mr. Trump had decided that shutting down TikTok would interfere with his "constitutional duties," so the law banning the social media app must give way to his "core presidential national security and foreign affairs powers."

The letters, which became public on Thursday via Freedom of Information Act lawsuits, portrayed Mr. Trump as having nullified the legal effects of a statute that Congress passed by large bipartisan majorities in 2024 and that the Supreme Court unanimously upheld.

My reaction? Schadenfreude.

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA. I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter. President Obama found ways to disregard laws he didn't like through hyper-creative means, but since those laws accomplished "positive" goals, everyone looked the other way. It might be true that Trump has leveled up with his most recent actions, but none of this would have been conceivable without precedents more than a decade ago.

Perhaps the greatest Schadenfreude comes from the aftermath: no one has standing to challenge the suspension of the laws. The OLC opinion announcing DAPA boasted about this fact. Here too, Trump's latest order does not seem susceptible to a challenge. Then again, people like to scroll through TikTok videos, so there is no appetite to stop it.

Four decades ago, Justice O'Connor observed that the Supreme Court's "abortion decisions ha[d] already worked a major distortion in the Court's constitutional jurisprudence." In the wake of Dobbs, the Court is slowly but surely eliminating that distortion field. Or as I put it, the Court is ending the epicycles of Roe.

Medina v. Planned Parenthood continues that effort.

Medicaid is a conditional spending program. The federal government gives money to the states with certain conditions. If the states do not comply with those conditions, the federal government can sue the states or withdraw the funding or do nothing at all. Conversely, if the states object to how the conditions are being enforced, the states can sue the federal government. Cases like South Dakota v. Dole and NFIB v. Sebelius illustrate how these principles work. (Justice Gorsuch's majority opinion provides a very readable survey of this caselaw.)

Yet there is a wrinkle. In certain circumstances, the courts have allowed recipients of state Medicaid funding to sue the states under Section 1983 for not following the federal conditions. As relevant in Medina, the courts have allowed Planned Parenthood to sue states for cutting off their funding. I won't walk through the precise statutory framework here. I think Justice Gorsuch's majority opinion lays it out fairly clearly. What is significant, however, is the Court's pivot.

In Wilder v. Virginia Hospital Association (1990), the Court "suggested that spending-power legislation can give rise to an enforceable right under §1983 so long as the legislation is 'intended to benefit the putative plaintiff 'and the plaintiff's interest in the statute is not 'too vague and amorphous.'" That is the sort of nebulous balancing test that was once the hallmark of the Supreme Court's caselaw. No longer.

In Medina, the Fourth Circuit ruled that Planned Parenthood could invoke Section 1983 in light of Wilder and related precedents. But Justice Gorsuch contended that more recent precedents repudiated Wilder:

Some lower court judges, including in this case, still consult Wilder, Wright, and Blessing when asking whether a spending-power statute creates an enforceable individual right.

They should not. Gonzaga "reject[ed]" any reading of our prior cases that would "permit anything short of an unambiguously conferred right to support a cause of action brought under §1983." Armstrong "repudiate[d]" any other approach. And Talevski reaffirmed that "Gonzaga sets forth our established method" for determining whether a spending-power statute confers individual rights.

Yet the Court doesn't actually overrule Wilder--it just encourages lower courts not to rely on the precedent:

To the extent lower courts feel obliged, or permitted, to consider the contrary reasoning of Wilder, Wright, or Blessing, they should resist the impulse.

This reasoning has the scent of Lemon. In Kennedy v. Bremerton, Justice Gorsuch faulted the lower courts for not realizing that the Lemon test had been "abandoned," even though the Court never expressly overruled the precedent. It is a longstanding rule that lower courts cannot anticipate that a Supreme Court precedent has already been, or will be, overruled. But Kennedy and Medina suggest otherwise. And Justice Gorsuch seems kind of annoyed that the lower courts didn't take the hint. Perhaps Hill v. Colorado has been abandoned as well, even if lower courts haven't gotten the memo yet. And I think Goldey. v. Fields, decided without recorded dissent, signals that Bivens has been abandoned as well.

7/5/1867: Justice James Wayne dies.

On July 3, the Supreme Court granted the government's "motion for clarification" in Department of Homeland Security v. D. V. D. I did a quick search, and I can't seem to find any other instance where the Court granted a similar "motion for clarification." Then again, I highly doubt any district court attempted to play fast and loose with a Supreme Court order. Kudos to Justice Kagan for calling out such inferior court resistance.

I did want to point out one aspect of Justice Sotomayor's dissent. She wrote:

Today's order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.

I thought that was an effective line. But do law students today even know what "speed dial" is? Most youths have never actually dialed a phone number on a touch tone phone, let alone a rotary phone. They all grew up with address books on their smartphones, assuming they even make phone calls. Students today have no idea why you would need a button to dial a particular phone number quickly. There is a risk to using references to technology, as those references pass. Indeed, I think the reference is speed dial is at least a decade past due.

Relatedly, I used the phrase "Rolodex" with students. I got blank stares. I was recently at a hotel with my young kids, who were playing with the phone in the room. I told them to "hang up" the phone. They had no idea what I was asking them to do. Like a clothes hanger? It has been a long time since a phone was hanging on a receiver.

Popular references seldom age well.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

At The Unpopulist, IJ's Anthony Sanders digs into the Supreme Court's inequitable evisceration of universal injunctions.

This week on the Short Circuit podcast: Is yoga speech? And what's a scrivener's error?

On the latest episode of Unpublished Opinions, IJ's roundtable podcast: Things get heated when opening the Bluebook, secrets are dished about dictionaries, and the team ponder what it's all about when it comes to public interest law.

Man with two Ohio felony convictions from the early 1990s turns his life around, gets a Ph.D., obtains a security clearance, and eventually receives a pardon from the Ohio governor, which allows his conviction to be sealed. He applies for a job with the FDIC, which rejects him when he informs them about his sealed conviction. Dr. John Doe then files a pseudonymous lawsuit against the FDIC, challenging its blanket ban on hiring felons. D.C. Circuit: But he cannot do so anonymously.
Proxy advisory firms give recommendations to institutional investors on how they should vote on shareholder governance proposals. In 2019, the SEC starts treating these recommendations as "solicitations," subjecting advisory firms to a slew of additional regulations. D.C. Circuit: Which is wrong. If anyone is soliciting here, it's the investors soliciting opinions from the firms, not the firms soliciting votes from the investors. Read More

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The Declaration of Independence. (National Archives.)

Over the years, I have written various posts and articles on the American Revolution and the ideals of the Declaration of Independence. Some have obvious continuing relevance to such issues as identity politics, nationalism, immigration, the role of slavery in American history, and more.

This post is an expansion of last year's similar compendium.

I hope the links are useful, and stir reflection on the principles of the Declaration. Unless otherwise noted, all of these pieces were published as posts on the Volokh Conspiracy blog. I put them in chronological order:

"The Declaration of Independence and the Case for Non-Ethnic Secession," July 4, 2009.

"The Declaration of Independence and the Case for a Polity Based on Universal Principles," July 4, 2017.

"The Universalist Principles of the Declaration of Independence," July 4, 2019. Why it matters that the Declaration elevates universal liberal principles over racial, ethnic, and cultural particularism.

"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding claims - advanced by critics on both right and left - that the Revolution did more harm than good.

"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. I think Douglass's speech may be the greatest-ever Fourth of July oration.

"Juneteenth and the Universalist Principles of the American Revolution," June 19, 2021. Why there is no inconsistency in celebrating both July 4 and the abolition of slavery. Indeed, the two are mutually reinforcing.

"Immigration and the Principles of the Declaration of Independence," July 4, 2021. This piece explains why the ideals of the Declaration and the Founding require free migration rights.

"Juneteenth Celebrates a Great American Achievement," June 19, 2023. An extension of some of the key points made in my 2021 Juneteenth post, linked above.

"The Declaration of Independence Promotes Individual Liberty More than Collective Self-Determination," July 4, 2023. The "liberty" the Declaration advocates is more about individual freedom than the power of majorities to rule over the rest of society, or the power of ethnic groups to rule "their" territory.

"The Case Against Nationalism," National Affairs, Winter 2024 (with Alex Nowrasteh). This article is a more general critique of nationalism. But it includes a section explaining why nationalism is inimical to the ideals of the Declaration and the Founding.

"Trump vs. the Declaration of Independence," July 4, 2025. Several items on the Declaration of Independence list of grievances against George III also apply to Trump today, most notably on immigration, trade, and deportation without due process. Like King George, he is "unfit to be the ruler of a free people."

Today is July 4, and we appropriately celebrate the Declaration of Independence. The Declaration is best known for its ringing affirmation of the rights to "Life, Liberty and the pursuit of Happiness." But it also contains a long list of grievances against King George III, by which the signers justified their decision to break from Britain. Sadly, many of these are relevant to Donald Trump's abuses of power today:

"He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."

As I describe here, this wasn't just a matter of protecting the American colonies' supposed right to control immigration policy themselves. It was also about the universal human rights of would-be migrants to choose where they want to live. Many of the leaders of the American Revolution saw the new nation as a refuge for the oppressed of the world. In his famous General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions."

Trump's policies are utterly at odds with these principles. He has launched a massive assault on nearly every type of legal migration, including trying to bar virtually all refugees (except white South African Afrikaners), closing the door to people fleeing communist oppression, deporting Iranian Christians fleeing radical Islamist persecution, stripping legal status from Afghans who fled the Taliban (including many who aided the US during the war), and more.

For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent

Tariffs are, obviously, a type of tax. Trump is using bogus invocations of emergency powers to impose massive tariffs that exceed anything seen since the Great Depression. And he is doing so without anything approaching proper congressional authorization. His abuses in this regard are reminiscent of the monarchical abuses of King Charles I, which helped lead to the English Civil War, and greatly influenced the Founding Fathers in their efforts to curb executive authority over taxation and trade.

"For transporting us beyond Seas to be tried for pretended offences"

Trump is using the Alien Enemies Act of 1798 to "transport" hundreds of immigrants to imprisonment in El Salvador, with no due process whatsoever. In addition to illegally invoking a wartime power at a time where there is no war or other similar conflict, this is a blatant violation of constitutional due process. Moreover, the vast majority of the men deported to imprisonment have no criminal record at all, and most entered the US legally.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

Modern Americans have largely lost Founding-era suspicion of standing armies, perhaps for good reason. We have had a large standing army in times of peace for many decades, and the legislature has supported it. But Trump has gone further than that, and illegally federalized the National Guard for domestic law enforcement. A trial court rightly struck it down. That decision was overruled by a misguided appellate decision, but only because of excessive deference to the executive's dubious and pretextual factual claims (the appellate court did still reject Trump's claims that he has unreviewable authority). Since then, Trump has gone a step further and illegally used the military for drug enforcement.

"He has excited domestic insurrections amongst us…"

Trump incited the January 6, 2021 attack on the Capitol, which was most definitely an "insurrection" (see also my more detailed discussion in this article). And, by the way, the Supreme Court's decision in Trump v. Anderson did not exonerate Trump on this point. The justices ruled (wrongly) that state governments cannot enforce Section 3 of the Fourteenth Amendment against would-be federal officeholders absent specific congressional legislation authorizing them to do so. They chose not to address the insurrection issue.

This part of the Declaration isn't one of my favorites. The "domestic insurrections" the Declaration complains about include British efforts to enlist black slaves against the American rebels (though it also probably was referring to recruitment of white Loyalists). It was hypocritical of the rebels to condemn the freeing of slaves to engage in "insurrection" against them even as they themselves rebelled against Britain due to lesser injustices than slavery.

That said, the insurrection Trump incited had no justification comparable to the wrongs that precipitated slave revolts or the revolution against Britain. He was inciting violence for a blatantly unjust cause.

Trump hasn't - so far - replicated all the grievances listed in the Declaration of Independence. But he has imitated enough of them to be well worthy of condemnation. The Declaration states the list of grievance against George III proves he is "unfit to be the ruler of a free people." The same is true of Trump.

From a June 27 Massachusetts AG opinion:

We find the facts as follows. Like many college campuses, UMass Amherst was the site of demonstrations during the 2023-2024 academic year, stemming from events in the Middle East. On April 29, demonstrators established an encampment, including tents, on campus property and made certain demands of the University. Construction of the encampment violated UMass Amherst Regulations for Use of Property, Trustee Doc. T90-079 (the "Land Use Policy"), which required pre-authorization of any structures.

Chancellor Reyes decided on April 29 that the encampment would not be allowed to remain on University property; protesters who refused to remove encampment structures after several explicit warnings would be subject to arrest for criminal trespass. Among the reasons for Chancellor Reyes's decision was his concern that tolerance of an encampment established in violation of the Land Use Policy would set an undesirable precedent in the event of future protests. Following discussions with University administration, demonstrators voluntarily removed the encampment on April 30.

At noon on May 7, demonstrators were observed unloading pallets onto the South Lawn of the UMass Amherst campus, again in violation of the University's Land Use Policy, to construct a second encampment. After the demonstrators ignored a notification that structures and tents were not allowed on the South Lawn, staff of the Demonstration Response and Safety Team ("DRST") entered the newly established encampment and asked them to disassemble a wooden barrier being constructed. DRST issued two additional warnings that day. As part of the third warning, demonstrators were advised of steps the University was taking in response to their demands and were further told that although they had the right to express their views, "you do not have a right to place structures outside the limits of the Land Use Policy. You can demonstrate in this space but you must dismantle and remove your tents and structures now."

The demonstrators, which included individuals who were not students or staff of UMass, did not remove the tents and structures following this third and final warning. That night, and into the early morning hours of May 8, the UMass Police Department, assisted by the Massachusetts State Police and other agencies, cleared the encampment and arrested 132 people, including 70 UMass Amherst students and six members of the UMass Amherst faculty.

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Judge Denies Pseudonymity, Because Plaintiff's Sensitive Personal Information Wouldn't Likely Emerge in the Case—But then Disclosed That Information In Its Order

"[T]he heart of the district court's analysis in denying Brooks's initial motion was its conclusion that the litigation would not require Brooks to disclose the information that he had filed under seal. But, in some respects, the district court's order did just that—it put the information that Brooks had filed under seal on the public docket."

Eugene Volokh | 7.4.2025 8:01 AM

From Eleventh Circuit Judge Andrew Brasher, joined by Judges Kevin Newsom and Ed Carnes, in Wednesday's Brooks v. City of Southside:

Brooks [a pseudonym] alleged violations of the United States Constitution and Alabama state law related to his arrest and prosecution…. The district court allowed Brooks to file a motion under seal to explain why he should be allowed to proceed anonymously. Brooks did so, and he revealed sensitive, personal information that he thought would come up during the litigation.

The district court discussed the sensitive information in Brooks's filing in a public order and then gave him the choice of filing a non-anonymous complaint or dropping his suit. Brooks asked the district court to reconsider its order and to seal it, arguing that the district court's public order undermined its conclusion that the information he filed under seal would not be disclosed in the litigation. The district court declined to reconsider its order, but it granted Brooks's request to seal it.

The district court did not abuse its discretion in denying Brooks's initial request to proceed anonymously. The district court properly invoked our presumption against anonymous pleading, and it applied the right test from our precedents. The district court reasonably concluded that the litigation would not require Brooks to disclose information of the utmost intimacy or admit that he intended to engage in illegal conduct.

But we believe the district court abused its direction in denying Brooks's reconsideration motion without explaining how the disclosure of his allegedly sensitive information affected its analysis. The district court's ruling on Brooks's initial anonymity motion was based, in large part, on the premise that Brooks would not be compelled to disclose in the litigation the sensitive information that he had filed under seal. But, after inviting Brooks to file that same information under seal, the district court's public order did disclose that sensitive information on the public docket. The district court did not explain how that change in circumstances played into its decision, and we cannot conduct that analysis in the first instance. Accordingly, we vacate the district court's order and remand for further proceedings….

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7/4/1776: Declaration of Independence is signed.

Stone Engraving of the Declaration of Independence

[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government. It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation's Founding.]

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted—as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that "all men are endowed by their Creator with certain unalienable rights—and that among these are life, liberty, and the pursuit of happiness.

The Declaration was much relied upon by Abraham Lincoln and many others before him:

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Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech

From the Eleventh Circuit, a reminder that First Amendment protections against government employer action are much weaker than the protections against the government as sovereign (especially, but not only, when the speech is also "disrespectful, demeaning, rude, and insulting").

Eugene Volokh | 7.3.2025 5:41 PM

From Judge Kevin Newsom's opinion today in Labriola v. Miami-Dade County, joined by Judges Robin Rosenbaum and Stanley Marcus:

John Labriola was a media aide for the Miami-Dade Board of County Commissioners. In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity.

In his piece, Labriola used inflammatory language to describe the LGBT people whom the bill sought to protect. He warned small-business owners "who resist surrendering their consciences to the new 'tranny tyranny'" that, if the bill was passed, "[i]t's going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." So too, Labriola warned local governments of what was to come: "No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns."

Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola's views represented the County's. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a "slur-laden tirade against transgender people." At that point, the County received a barrage of phone calls from concerned residents.

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The Volokh Conspiracy

Justice Kavanaugh Lays Out His Roadmap In FCC. v. Consumers' Research

Justice Kavanaugh parts ways with Justice Gorsuch on the non-delegation doctrine, but charts two paths for independent agencies.

Justice Kagan Rejects "Combination Theory" Claims For Separation of Powers Cases

"A meritless public non-delegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious 'combination' claim."

SCOTUS Holds, In A Footnote, That The "Capable Of Repetition, Yet Evading Review" Doctrine Can Apply Even When Plaintiff Does Not Seek A Preliminary Injunction

Justice Kagan mows down many circuit precedents without much explanation.

What Is A "Liberty Interest" And Why Does The Due Process Clause Protect It?

Once again, Justice Thomas raises questions the other Justices simply do not wish to answer.

On Schadenfreude

It is time, I suggest, to give what-about-ism a well-deserved burial.

TikTok Schadenfreude

Medina v. Planned Parenthood: Abandoning the Abortion "Distortion" Field For Section 1983 and the Spending Clause

The Court faults lower courts for not anticipating the abandonment of Wilder and other Section 1983 precedents.

Today in Supreme Court History: July 5, 1867

What Is "Speed Dial"?

Justice Sotomayor used a catchy line in her dissent that most law students today will not understand.

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Federal enclaves, false alarms, and pseudonymous lawsuits.

Friday Open Thread

What's on your mind?

Writings on the Declaration of Independence and the American Revolution

Links to some of my previous writings on these topics, which remain relevant today.

Trump vs. the Declaration of Independence

Several of the items on the Declaration's list of grievances against King George III also apply to Donald Trump today.

Open Meeting Law Meets University Encampment Policies

Judge Denies Pseudonymity, Because Plaintiff's Sensitive Personal Information Wouldn't Likely Emerge in the Case—But then Disclosed That Information In Its Order

Today in Supreme Court History: July 4, 1776

What the Declaration of Independence Said and Meant

It officially adopted the American Theory of Government: First Come Rights; Then Comes Government to Secure These Rights.

Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech

From the Eleventh Circuit, a reminder that First Amendment protections against government employer action are much weaker than the protections against the government as sovereign (especially, but not only, when the speech is also "disrespectful, demeaning, rude, and insulting").

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