The Volokh Conspiracy

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

Today, Planned Parenthood challenged the constitutionality of the Big Beautiful Bill, which cuts funding for the organization. Planned Parenthood chose the District of Massachusetts. The Motion for a TRO was fifty-three pages long. According to press reports, the District Court granted the ex parte TRO within a few hours. (ECF should really start including time stamps, now that the Supreme Court has ruled constructive denials can be measured in minutes.)

Was this even enough time to read the entire brief? To consider it? To give it some thought? Or was this just a reflexive TRO that was granted because the Defendant is the Trump Administration? We saw a similar immediate TRO granted by another Federal District Court Judge in Boston who ruled in favor of Harvard, without any opportunity to actually review the pleadings. Then again, when the Supreme Court holds that District Courts are deemed to constructively deny TROs when they don't rule in a few hours, lower courts take notice. There are no Denny's in Boston. But for those curious, the one Denny's in Lubbock is open 24x7.

You can tell the Judge in the Planned Parenthood case rushed. The order didn't even address any of the usual factors. There was zero analysis whatsoever. I don't see how this is a valid TRO. You need to at least gesture to the four factors.

Worse still, this was a TRO not of an executive action, but of an actual statute that passed bicameralism and presentment. And the judge ordered the executive branch to appropriate money that was expressly unappropriated.

Defendants, their agents, employees, appointees, successors, and anyone acting in concert or participation with Defendants shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood Federation of America and its members; Planned Parenthood League of Massachusetts; and Planned Parenthood Association of Utah.

This is basically an administrative stay of an appropriations statute!

It is not even clear the court's equitable powers supports such a remedy.

The TRO also requires the expenditure of funds not authorized by Congress, in violation of the Appropriations Clause. And SCOTUS held in OPM v Richmond (1990) that not even a court's equitable powers can overcome that bar.

— Trent McCotter (@TrentMcCotter) July 8, 2025

Lower court judges are misbehaving. The Supreme Court sent a clear signal on universal injunctions. I think a similar message needs to be sent about ex parte TROs. You should at least take enough time to "pretend" to read the complaint.

So alleges Retraction Watch (Rita Aksenfeld):

Based on a tip from a reader, we checked 18 of the 46 citations in the book {Mastering Machine Learning: From Basics to Advanced}. Two-thirds of them either did not exist or had substantial errors….

The book's author, Govindakumar Madhavan, asked for an additional "week or two" to fully respond to our request for comment. He did not answer our questions asking if he used an LLM to generate text for the book. However, he told us, "reliably determining whether content (or an issue) is AI generated remains a challenge, as even human-written text can appear 'AI-like.' This challenge is only expected to grow, as LLMs … continue to advance in fluency and sophistication." …

When asked about the potential use of AI in the work, [Springer Nature senior communications manager Felicitas] Behrendt told us: "We are aware of the text and are currently looking into it." She did not comment on efforts taken during Springer Nature's editorial process to ensure its AI policies are followed….

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Last week, I submitted a comment to the Supreme Court of Texas. In short, I argued that SCOTX should discount the opinions of the law school deans, as they do not represent the public interest. I've now reviewed the letter signed by deans from eight law schools, including my own. With respect, I did not find this letter very persuasive. Indeed, if this is the best the law deans can muster, then SCOTX should seriously reconsider what value the ABA provides. By contrast, the letter from University of Texas Dean Bobby Chesney offers a candid and realistic assessment of the costs and benefits of the ABA.

Let's walk through the primary letter, which I suspect was drafted by Dean Leonard Baynes at the University of Houston Law Center. (As a general rule, the lead signature usually belongs to the primary mover.)

First, the letter states that the ABA provides a "baseline of educational quality that correlates with higher bar passage rates." Baylor Law School, which signed the letter, consistently leads the state with a bar passage rate over 90%. Other schools that signed the letter routinely have a passage rate in the 70% range. Does anyone think that the ABA accreditation provides a "baseline" to determine bar passage? No. Bar passage is a combination of incoming class credentials, combined with the "secret sauce." The ABA does require that law schools maintain a minimum level of bar passage. The Supreme Court of Texas could easily impose the same requirement.

Second, the letter contends that removing the ABA's role would harm "the unserved and underrepresented, exacerbating existing access to justice challenges in Texas." Quite the opposite. The ABA is a cartel, which creates massive barriers to entry, and increases the cost of legal education. There are currently no law schools in the Rio Grande Valley, parts of East and West Texas, and the Panhandle. Those markets could be served through innovative approaches. If SCOTX moved on from the ABA, law schools could innovate, and there would be more opportunities to promote access to justice.

Third, the Deans actually complain that removing the ABA's role would make it harder for U.S. News to calculate rankings. This argument may seem persuasive to Deans, but I doubt the Supreme Court of Texas will care much about what a (former) magazine publishes. And it wouldn't be hard for SCOTX to require law schools in Texas to publish these numbers. Indeed, I agree with Seth Chandler that accreditation should move to a formula based on such outputs.

Fourth, the Deans assure SCOTX that the DEI standards are "suspended" Yet, after Students for Fair Admissions, but before Trump's elections, many of these Deans vigorously defended the DEI standards. I am not at all confident the ABA can be trusted if the Damoclean sword is eliminated.

At bottom, all the Deans have to rely on is portability. They worry that students who do not plan to practice in Texas will not attend their schools. But as I explained in my comment, accommodating the needs of students who wish to leave Texas is not exactly in the best interest of Texas.

I think a far better statement comes from UT Law Dean, Bobby Chesney. (It does not seem the Dean of Texas A&M submitted a letter). Chesney explains how the ABA's standards do not simply set a minimum baseline, but instead try to impose "best practices." For example, the current "experiential learning" rule would impose handcuffs on law schools:

Even so, when the ABA Standards not long ago were amended to require every law school to change their graduation requirements such that every student (no matter their career goals and no matter the school's resources) must spend at least six of their credits taking experiential courses, it seemed to many to be an example of the Council growing increasingly comfortable imposing its conception of best practices rather than confining itself to policing the baseline adequacy of the schools. But that original intervention was minor compared to the proposed expansion of this rule currently on the table.

Chesney closes with a call for change:

From that perspective, a well-designed alternative pathway should turn on an intentionally-parsimonious set of benchmarks for baseline adequacy, thus leaving maximum room for innovation. If well chosen, those benchmarks might actually be relatively administrable. They might consist, for example, of relatively-objective input measures such as the credits and particular courses required for graduation, the quantity and qualifications of the faculty, grading policies, etc. But in the spirit of innovation, they probably should as much or more emphasize outcome measures, especially bar passage, employment percentages, and cost-to-salary ratios.

One could err on the side of taking great risk in this way, in hopes of unleashing exciting innovations. Or one could err the other way, cracking the door open only to a limited degree by keeping the benchmarks (particularly requisite bar passage levels) demanding. Either way, however, it would be fascinating to see what might arise should the Court reopen such a pathway given the current climate of innovation, change, and cost concerns. I hope the Court will give some version of it a shot; it seems the Texas thing to do.

I agree with Chesney.

For more than a decade, it seems that different rules apply to Obamacare cases. In NFIB v. Sebelius (2012), a penalty was rewritten into a tax, and a mandatory Medicaid expansion was rewritten into a voluntary program. In King v. Burwell (2014), "established by the State" was rewritten as "established by the federal government." In California v. Texas (2021), the Court found that the plaintiffs waived a standing argument that was clearly invoked. And so on. When health care is at issue, all the usual rules go out the window.

The latest ACA case continues the trend. Kennedy v. Braidwood Management, Inc. is an Appointments Clause case. Yet, the Court resolves this dispute based on a theory not developed below. Justice Thomas's dissent explains what happened:

This case concerns the U. S. Preventive Services Task Force, a body that issues legally binding recommendations regarding preventive healthcare treatments. At the beginning of this suit, a subordinate official within the Department of Health and Human Services (HHS) had for years appointed the Task Force's members. Everyone now agrees that this practice was unlawful. Everyone further agrees that no one statute provides for a department head to appoint the Task Force's members. But, rather than accept that the default mode of appointment applies, the Government invented a new theory on appeal, arguing that the combination of two ambiguously worded statutes enacted decades apart establishes that the Secretary of HHS can appoint the Task Force's members. The Court today rushes to embrace this theory. I cannot. To begin with, I would not rule on the Government's new theory before any lower court has done so.

Thomas writes that two questions are presented, but the Fifth Circuit only considered the latter question:

I would remand for the Fifth Circuit to consider the important threshold question that it skipped: whether the Secretary has the statutory power to appoint the Task Force. The Secretary may appoint the Task Force's members only if (1) Congress has vested in the Secretary the power to appoint them, and (2) the members are inferior officers under the Appointments Clause. The answer to the first question significantly affects the analysis of the second question. But, no court has passed on the first question, and this Court has had only a limited opportunity to consider it.

And the novel theory the Court relied on was based on the Reorganization Plan of 1966 (not a statute). This Plan could not vest the Executive with new powers that did not exist in 1966. Yet, that is exactly what the government argued here.

Thomas explains:

Here, the purpose of a "reorganization" plan is to "give a definite and orderly structure to" a department's existingfunctions, not to create new functions that a departmentcannot otherwise lawfully perform. Oxford English Dictionary 923–924 (2d ed. 1989) (defining "organize"). A plan may not, "under the guise of consolidating and rearranging, . . . creat[e] authority in the Executive Branch which had not existed before." Dept. of Justice, Office of Legal Counsel,Memorandum of William H. Rehnquist, Assistant Atty.Gen. (Sept. 11, 1969), in Reorganization Plan No. 1 of 1969 (ICC): Hearing before the Subcommittee on Executive Reorganization of the Senate Committee on Government Operations, 91st Cong., 1st Sess., 29 (1969) (Rehnquist Memorandum). Yet, that is precisely what the Government'sreading accomplishes, since, without the ReorganizationPlan, the Executive has no power to appoint the Task Force outside the gauntlet of Senate confirmation.

Seth Barrett Tillman and I wrote about the Rehnquist opinion here.

Justice Thomas also gets a good dig in about how Justice Kavanaugh focus on executive branch practice:

The intervening passage of the ACA also makes the majority's appeals to "consistent Executive Branch practice" fall flat. Ante, at 31 (citing Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024)).The Government concedes that its practice from 2010 until its appeal inthis suit was for the AHRQ Director to appoint Task Force members invalidly, based on the mistaken view that the members were not officers. See Brief for Federal Defendants in Braidwood Mgmt., Inc., No. 23– 10326 (CA5), ECF Doc. 159, pp. 31, n. 2, 41. The practice thus sheds no light on whether the Director's convening power constitutes an express vesting of appointment authority that overcomes the constitutional default. And, surely this Court did not overrule Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), only to defer to concededly unlawful executive action.

There is a big problem with Justice Kavanaugh's fixation on tradition. At bottom, it is a deference doctrine, where unlawful conduct can become lawful if it continues.

In the normal course, the Supreme Court would have remanded the case to the lower court. But it seemed pretty clear that the Supreme Court did not want to give the Fifth Circuit another crack at this case, so the majority went ahead and decided this novel issue from scratch.

Here is your regular reminder that President Trump could have, but didn't, elevate his Fifth Circuit appointees to the Supreme Court.

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From Judge Nina Wang (D. Colo.) today in Coomer v. Lindell:

In preparation for trial in this matter, the Court issued a Trial Preparation Order that set certain deadlines, including for the filing of motions in limine. The Trial Preparation Order further informed the Parties that any pending motions in limine would be discussed at the Final Pretrial/Trial Preparation Conference…. Defendants … filed a Brief in Response to [a] Motion in Limine ("Opposition") [Doc. 283] … [that] contained … "nearly thirty defective citations" ….

[At a hearing,] Mr. Kachouroff [lead counsel for Defendants] was unable to respond [about the defective citations] in a manner that was satisfactory to the Court. Specifically, Mr. Kachouroff indicated that he had delegated citation checking for the Opposition to his co-counsel, … Ms. DeMaster …. [T]he Court ordered Mr. Kachouroff and Ms. DeMaster to show cause why they should not be sanctioned and referred to their respective state bars for disciplinary proceedings….

In [their] Response, Defendants represented that counsel "was unaware of any errors or issues with his response filed 55 days earlier, and had no reasonable opportunity to investigate any problem to be able to engage in constructive discussion about Doc. No. 283." Defendants further asserted that "[a]fter the hearing and having a subsequent opportunity to investigate Doc. 283, it was immediately clear that the document filed was not the correct version. It was a prior draft. It was inadvertent, an erroneous filing that was not done intentionally, and was filed mistakenly through human error. Counsel acted swiftly to rectify the error." Defendants submitted additional materials for the Court's consideration and certified that the record is complete with respect to the Order to Show Cause….

The court was unpersuaded by the Response, and concluded:

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From Tuesday's decision by Judge Richard Seeborg (N.D. Cal.) in In re: Xyrem (Sodium Oxybate) Antitrust Litigation:

In the course of this complex and hard-fought multidistrict litigation, the parties have moved to seal some component of nearly every motion they filed. Too often, in this case and others, such requests are granted because it is easier to leave something sealed than it is to explain why it should be unsealed. As a result, the records of the federal judiciary are replete with documents that the public cannot access simply because a party designated it confidential.

This order addresses the sealing motions pending on the docket. As explained in more detail below, such motions fail to meet the "compelling reason" standard that generally applies to merits-related materials in courts of the Ninth Circuit. The motions are therefore denied….

Federal courts are public. Their dockets should largely remain publicly accessible except in the relatively narrow instances where parties provide compelling reasons to the contrary. As to the above sealing motions, the parties' submissions to the court are neither compelling nor sufficiently weighty to overcome the presumption of public access. Thus, the motions are denied.

To his credit, Judge Seeborg writes over 5000 words dealing with the details of the attempts to seal many different kinds of filings; read the opinion for more.

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In last week's Peterson v. Rush (Pa. Super. Ct.), the trial court had given shared legal and physical custody of a daughter to the mother and father, but also stated this:

I am, therefore, going to order Mother that, to the extent that she has concerns over child abuse, obviously any concerns regarding child abuse need to be reported to authorities, but they must now be reported with a disclaimer [(Disclaimer)]: "The [c]ourt made a finding of fact at the conclusion of a one-day trial on September 10, 2024, that Mother has intentionally weaponized the [Protection From Abuse], I[ndirect] C[riminal] C[ontempt], and child abuse process[es] in an effort to gain an advantage in custody proceedings." Mother should then further inform the providers that: "Nevertheless, all legitimate allegations or concerns of child abuse should be fully investigated as required by law." I am ordering Mother to make those two statements in any further child abuse reports so that a proper context is had….

On appeal, Judge Anne Lazarus, joined by Judge Timika Lane, upheld this condition:

Because Mother did not raise or even suggest a free speech claim in her Rule 1925(b) statement, the issue is waived on appeal. However, even if we did not find this issue waived, Mother would not be entitled to relief. {First Amendment protections historically encompass prohibitions on speech as opposed to compelled speech. See In the Int. of J.J.M. (Pa. 2021) ("First Amendment 'made applicable to the States through the Fourteenth Amendment, provides that 'Congress shall make no law … abridging the freedom of speech.'"); citing U.S. CONST. amend. I. In any event, the court was justified in requiring Mother to disclose the information contained within the Disclaimer where it bears directly upon "the important governmental interest of protecting the psychological and emotional well-being of Child[.]" S.B. v. S.S. (Pa. 2020).}

Judge Mary Jane Bowes dissented on this point:

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7/7/1893: Justice Samuel Blatchford dies.

There is much to say about the Supreme Court's decision in Kennedy v. Braidwood Management, Inc. The majority opinion by Justice Kavanaugh and the dissent by Justice Thomas disagree on just about every point. But one area where there is substantial agreement concerns the line between an "Officer of the United States" and a mere employee. Indeed, I think the majority and dissent state this issue with more clarity than in previous cases.

Justice Kavanaugh's majority opinion explains:

The Appointments Clause in Article II of the Constitution specifies how "Officers of the United States," as distinct from employees, must be appointed. §2, cl. 2.

Here, the Court draws a bright line between an "Officer of the United States" and a mere employee. And what is that line?

Quoting Lucia, Justice Kavanaugh explains the line turns on whether the individual exercises "significant governmental authority."

An officer exercises "'significant authority pursuant to the lawsof the United States.'" Lucia v. SEC, 585 U. S. 237, 245 (2018). An employee, by contrast, does not exercise significant governmental authority. See ibid.

Justice Kavanaugh does not quite say that employees cannot exercise "significant authority." He says they do not exercise such authority. Still, I think a plausible reading of Justice Kavanaugh dissent is that an employee cannot exercise "significant authority." If an employee could exercise "significant" authority, then there would not be a distinct line between "Officer of the United States" and an "employee." Indeed, without this line, Congress could vest unaccountable employees--who are not subject to the Appointments Clause--with this great power. And with great power, comes great responsibility. Stated differently, great power requires great accountability. (I tried to get this line out during oral argument, but couldn't quite finish.)

Further, Justice Kavanaugh reinforces this distinction with his summary of the facts:

Before 2010, members of the Preventive Services Task Force were not officers at all. The Task Force was an advisory body, and the Task Force members made only non-binding recommendations. As a result of the 2010 Affordable Care Act, however, the Task Force's "A" and "B" recommended preventive services now must be covered by health insurers at no cost to the insured. For that reason, the parties here agree that the Task Force members exercise significant governmental authority and qualify as "officers" of the United States. They disagree, however, over whether Task Force members are principal or inferior officers.

In other words, because the Task Force members exercise "significant authority," they cannot be employees; they must be "Officers of the United States" who are appointed pursuant to the Appointments Clause. The majority ultimately holds that the Task Force members are inferior officers. I don't quibble with that holding here.

Justice Thomas's dissent draws the same distinction between "Officers of the United States" and employees:

The Clause prescribes the exclusive means of appointing "'Officers of the United States.'" Lucia v. SEC, 585 U. S. 237, 244 (2018). Officers are Government officials who exercise "'significant'" federal authority on an "ongoing" basis. Id., at 245–246. Those who do not exercise such authority are mere nonofficer employees and are not subject to the Clause's requirements. Id., at 245. [FN1]

[FN1] The parties agree that the exercise of "significant authority" marks the dividing line between officers and nonofficer employees. Brief for Petitioners 2 (internal quotation marks omitted); Brief for Respondents 4–5. I will assume that this view is correct for purposes of this opinion.But see Lucia, 585 U. S., at 254 (THOMAS, J., concurring) ("The Founders likely understood the term 'Officers of the United States' to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty").

Again, I would read the Thomas dissent to support the proposition that employees cannot exercise "significant authority." Were Congress to vest a position with such power, that position must be filled under the auspices of the Appointments Clause.

After the Court called for supplemental briefing in Braidwood, Seth Barrett Tillman and I offered this analysis:

If the positions of Task Force members are not filled consistent with the Appointments Clause and Inferior Office Appointments Clause, that is, if members are not appointed under the authority of a statute, then the purported office-holders are not officers of the United States of any stripe, principal or inferior. At most, they would be "employees." And, as a general matter, we do not think employees can exercise the "significant authority" of an officer of the United States. (We made this point during the Special Counsel litigation.) Such employees certainly cannot be vested with any sort of "independence" vis-a-vis principal officers and the President Here, and elsewhere, so much turns on whether a person is or is not an officer of the United States.

I think that both the majority opinion and the dissent provide some support for our position.

Gundy v. United States (2019) and Fulton v. City of Philadelphia (2020) signaled that the Court was open to changing course in two important doctrines. First, in Gundy, Justice Gorsuch's dissent, which was joined by the Chief Justice and Justice Thomas, signaled that the Court should rethink the non-delegation doctrine. Justice Alito also seemed to be on board in the appropriate case. Plus Justice Kavanaugh sent similar signals in his later opinion in Paul v. United States.

Second, in Fulton, Justices Alito, Thomas, and Gorsuch were ready to overrule Employment Division v. Smith. Justice Barrett wrote a short concurrence, joined by Justice Kavanaugh. They acknowledged that Smith had problems, but worried about what test would replace it. Barrett also posed some questions, which in theory at least, would help her get to yes.

Five years later, have the Gundy and Fulton moments passed?

FCC v. Consumers' Research solidified the intelligible principle test, at least in the context of non-independent agencies. Justice Kavanaugh's concurrence and Justice Barrett's silence signal this is likely the end of the road for the Gundy dissent. It is still not clear what line will replace "intelligible principles" so they will stick with the norm. They are likely content to use the major questions doctrine to detect dicey delegations. Indeed, Justice Kavanaugh explains that this test is a bipartisan favorite:

The intelligible principle test has had staying power—perhaps because of the difficulty of agreeing on a workable and constitutionally principled alternative, orbecause it has been thought that a stricter test could diminish the President's longstanding Article II authority to implement legislation. . . .

Presidents of varying policy views and political affiliations have accepted or advocated in favor of the intelligible principle test. See, e.g., Reply Brief for United States 3–6 (Trump); Brief for United States 19–38 (Biden); Brief for United States in Gundy v. United States, O. T. 2018, No. 17–6086, pp. 14–22 (Trump); Brief for United States in Whitman v. American Trucking Assns., Inc., O. T. 2000, No. 99–1257 etc., pp. 21–26(Clinton); Brief for United States in Mistretta v. United States, O. T. 1988, No. 87–7028 etc., pp. 20–25 (Reagan).

I am not a fan of these sorts of political arguments, but this is how Kavanaugh approaches the law. If some rule is good enough for Trump, Biden, Clinton, and Reagan, it is good enough for Kavanaugh.

What about Smith? The Court has denied cert in a number of petitions to overrule Smith. Yet, Justice Barrett has not written a word about the questions she posed. I was frankly never convinced she wanted to hear the answers to those questions. They were filler. She had to say something. Remember, Justice Barrett is a product of her scholarly home, and scholars at Notre Dame, including Phil Muñoz, have defended Smith on originalist grounds. Is there anything approaching a scholarly consensus to rebut that history? What is the theory? Justice Barrett is apparently not persuaded by Michael McConnell. Here too, Barrett and Kavanaugh may think the application of the "most favored nation" doctrine to religion cases will handle the bulk of the cases.

Time will tell if these moments have passed.

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.

The Volokh Conspiracy

Another Boston Judge Enters Ex Parte TRO Hours After Filing, Without Any Time To Actually Read Filings

The judge also granted TRO of a statute without even addressing any of the usual factors.

"Book on Machine Learning Is Full of Made-Up Citations"

The Texas Law Deans Provide A Weak Defense of the ABA's Accreditation Role

If this is the best the law deans can muster, SCOTX should seriously reconsider what value the ABA provides.

SCOTUS Bends The Law In Yet Another Obamacare Case

Kennedy v. Braidwood Management, Inc. follows in the ignoble tradition of NFIB, King, and California.

Monday Open Thread

What's on your mind?

$6K Sanctions for Apparent AI Hallucinations in Coomer v. Lindell / My Pillow Election-Related Libel Suit

"Too Often," Requests to Seal Are "Granted Because It Is Easier to Leave Something Sealed Than It Is to Explain Why It Should Be Unsealed"

May Judge Order Divorcing Parent to Include Disclaimer With All Future Child Abuse Allegations?

A trial judge had found that the mother had "intentionally weaponized" child abuse reports, and required her to so state in any future child abuse allegations made to authorities.

Today in Supreme Court History: July 7, 1893

Braidwood Distinguishes Between "Officers of the United States" And "Employees"

"Officers of the United States" can exercise "significant authority," but employees cannot.

Have The Gundy and Fulton Moments Passed?

The intelligible principle test and Employment Division v. Smith are likely safe from Justices Kavanaugh and Barrett.

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.

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