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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: No Protection for Heroin Trafficker
Fifth Circuit reaffirms Rahimi’s “dangerousness” standard in § 922(a)(1) case
On June 2, the Fifth Circuit decided United States v. Squire, which posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation." As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…."
Suspecting him of involvement in a shooting in New Orleans, police secured a warrant to search the home of Curtis Squire, where they found a handgun. While the handgun was not found to have been used in the shooting, Squire was charged with felon-in-possession, 18 U.S.C. § 922(g)(1), based on his prior convictions of conspiracy and substantive counts of possession with the intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice. In the same case, he had been convicted of a conspiracy count to possess stolen things, and in another case, burglary and unauthorized use of a motor vehicle.
Fifth Circuit precedent recognized § 922(g)(1) to be unconstitutional as applied to some felons, as "[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny." Non-violent felonies such as marijuana possession without evidence of present intoxication were subject to as-applied challenges. As the court wisely wrote, "If Congress could escape Bruen's reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review." Those words are worth their weight in gold.
By contrast, predicate offenses involving a dangerous or violent crime justified disarmament. For that proposition, the court saw no need to make out an empirical case for the fact that heroin trafficking while armed is dangerous and involves violence. Drug gangs wage war with each other and with law enforcement. Drug traffickers use threats of violence and violence to enforce their illegal dealings as well as to protect their turf. And heroin is a type of poison on which users often overdose and die. One who traffics in heroin poses a physical danger to others.
Instead, the Squire court conducted the usual Bruen analysis of looking at historical analogues, having already concluded that Mr. Squire's ability to have a firearm in his home was covered by the Second Amendment's plain text. The English Militia Act of 1662 directed the disarming of "dangerous and disaffected persons," even though, as Rahimi notes, the Glorious Revolution reduced the Crown's power to do so. Catholics were disarmed as not having loyalty to the government. In the American Revolution, persons refusing to swear an oath of allegiance were disarmed.
Native Americans and African Americans were also disarmed. While use of these analogues is problematic, the court explains: "Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament."
The Supreme Court should use the opportunity in Wolford, which concerns Hawaii's "vampire rule" banning exercise of Second Amendment rights in most public places, to disown the use of racist historical analogues. My amicus brief in Wolford on behalf of the African American Gun Association makes that point in detail about an 1865 Louisiana black code provision. And as Justice Kavanaugh wrote in his Rahimi concurrence: "Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation's history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution."
Squire sought to distinguish his situation by the fact that he possessed the handgun at home, but the court found that argument to be "mugged by the reality that our historical laws support his disarmament, even in the special confines of his home." (I guess "mugged" is a term Squire would readily understand.) As the court concluded, "§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location." That is a narrow holding, as "We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order."
The panel distinguished other courts that have refused to recognize any as-applied challenge to the felon-in-possession ban by postulating the basic difference between dangerous and violent crimes from mala prohibita, victimless crimes such as mere possession of marijuana. We'll see what the Supreme Court says about that when it decides Hemani, which presents the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent." See my post here.
* * *
In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress's power under the Commerce Clause as foreclosed by circuit precedent. Unsuccessful attempts to rein in Congress on the issue included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus. Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent. Query whether the Supreme Court will ever return to the premise that local crime is not interstate commerce.
The Criminal Charges Against Judge Ryan Nelson: How Should the Judiciary Respond?
A guest post from Professor Arthur Hellman.
I am happy to pass along this post from Professor Arthur Hellman, concerning Judge Ryan Nelson's parking lot altercation, which I wrote about here:
Over the weekend, Bloomberg Law reported that Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals has been charged with misdemeanor battery for his actions in an April 2 altercation with a man in a parking lot in Idaho Falls, Idaho. Judge Nelson has also been charged with malicious injury to property – the "property" being the glasses of the other man, which Judge Nelson allegedly knocked off and stomped on. The altercation apparently began when the other man said (twice) to Judge Nelson: "Learn how to park."
The Idaho State Journal published video of the incident and also a more detailed account of the episode. A pretrial conference is scheduled for June 18.
In the Judicial Conduct and Disability Act of 1980 (JCDA), Congress established a process for dealing with complaints that a federal judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability." Judge Nelson's alleged conduct would arguably support a finding of misconduct under the JCDA; it may also implicate the provision dealing with disability. How should the judiciary respond to this report?
Under the Act, complaints against judges may be filed by "any person" and thereafter reviewed by the Chief Judge of the Circuit. But the Chief Judge need not wait for the filing of a complaint before initiating the process. She may "identify" a complaint with the same effect. I have argued that "when reports of possible misconduct have become public, the chief judge should be required to identify a complaint." This will reassure the public that the judiciary is truly committed to policing misconduct within its ranks. And if the judge is exonerated, the process will help to remove the cloud that would otherwise hang over the judge's reputation.
So the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint. What next? The law allows Judge Murguia to conduct a "limited inquiry," but not to "make findings of fact about any matter that is reasonably in dispute." If there are disputed facts relevant to the complaint, she must appoint a Special Committee similar to the one that recently investigated the allegations against Judge Eleanor Ross of Atlanta.
I'll skip now to the question: does Judge Nelson's conduct fall within the statutory definition of misconduct quoted above? After all, in contrast to Judge Ross, all of Judge Nelson's conduct took place outside the court and was unrelated to his judicial role.
The most extensive discussion of that question in the decisions under the Act is found in a misconduct order issued by Chief Judge Dennis Jacobs of the Second Circuit almost 20 years ago. The proceeding involved an altercation at a campfire on a beach. The principal allegation of the complaint was that the subject judge engaged in misconduct by intentionally striking the complainant without justification and, as a result, was charged with a criminal offense. The similarity to the allegations against Judge Nelson is striking.
Chief Judge Jacobs assumed that extrajudicial conduct could fall within the Act, but after careful analysis (which should be read in full), he concluded that the alleged assault at the beach did not. He summed up by saying that "this was a one-time private dispute between private citizens, one of whom happens to be a judge. At worst, the Judge used physical force to terminate a private confrontation in which the Complainant was using obscenities in the presence of the Judge's small children."
As the second quoted sentence indicates, there were mitigating circumstances in the case before Judge Jacobs that appear to have no close counterpart in the episode involving Judge Nelson. But there may be other mitigating circumstances here. Josh Blackman has ascertained that the parking lot adjoins a hospice center; it is possible that something was going on in Judge Nelson's life that caused him to "snap."
If this was an isolated episode related to a serious medical concern, that might be reason to conclude that the conduct was not misconduct under the Act. Indeed, if Judge Nelson apologizes to the individual involved (which I hope he will do in any event), the Chief Judge or the Judicial Council might "conclude the proceeding" (as the Act authorizes) upon finding that "appropriate corrective action has been taken." That would avoid the need to determine whether Judge Nelson's actions constituted misconduct.
The hospice center setting also raises the possibility that Judge Nelson's conduct reflects a disability or the effect of medications. That too is something that the Chief Judge and the Judicial Council should investigate and take into account.
On the other side of the ledger, shortly after Judge Nelson's confirmation in 2018, the Wall Street Journal reported that in the two decades before his appointment, he had compiled an extensive record of traffic citations. "He's gotten tickets for speeding, disobeying traffic lights and signs, illegal turns, seat-belt violations, not carrying proof of insurance, skipping an auto inspection and not registering his vehicle. He's been cited on his boat as well."
If that behavior stopped after his appointment as a judge, it should not preclude a finding that the parking lot altercation was an isolated event in his life. But if it has continued, that would raise questions about whether the altercation reflects a temperament inconsistent with the judicial temperament. And that might even raise questions about his fitness for judicial office, parallel to those that have been raised with respect to Judge Ross. (My own view is that the most serious finding of misconduct by Judge Ross is the one that involves false statements to the judges who were investigating her misconduct. That finding corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. No such conduct has been alleged here.)
But it is far too early to condemn Judge Nelson. The criminal proceeding should take its course; so should the processes under the Judicial Conduct and Disability Act and the rules that the judiciary has promulgated to implement it. When all of those investigations have concluded, there will be time enough to make judgments about Judge Nelson's future as a federal judge.
A Few Preliminary Thoughts About Judge Ryan Nelson's Parking Lot Incident
There are different ways we learn about judges who misbehave. In some cases, we learn about the misconduct after all of the proceeding are complete, and a public reprimand is issued. In other cases, we learn about the misconduct but not the judge who committed the misconduct, following a private reprimand. Such was the case with Judge Ross, although we figured out her identity pretty quickly. And then there are the cases where we learn about the misconduct before the proceedings were completed, or even began. Such is the case with Judge Ryan Nelson of the Ninth Circuit.
Eugene blogged about the incident last night. Bloomberg Law had additional coverage. (As an aside, Bloomberg Law has some of the most thorough coverage of the lower courts today; they consistently outperform other outlets.)
Here, I'll offer a few preliminary thoughts.
First, while I have never met Judge Ross, I do know Judge Nelson. All of my interactions with him over the years have been very cordial. The person I saw in that video was not the person I have come to know and like. As a general rule, we should not be judged at our worst moment, though in life and law, sometimes we are.
Second, I was able to figure out where the incident happened. The surveillance footage was labeled "Front Parking F Street." And the State Journal article referenced the location was on Memorial Drive. Google Maps quickly allowed me to find the intersection in Idaho Falls, Idaho. That parking lot belongs to a Home & Hospice Center. You can see the same blue column that appears in the video.
Third, this location may be relevant. One can imagine that attending to a loved one in hospice may be an emotional experience that could have put Judge Nelson, and the other person, in difficult emotional stages. Also, rushing to a hospice center may explain the judge's failure to pull into a single spot, though the lot was wide open.
Fourth, both Judge Nelson and the other person behaved poorly. Again, the lot had many empty spots. Why did the guy in the white truck pull up right next to Judge Nelson's car? And it wasn't necessary to say anything about the parking job. But then Judge Nelson lost his temper and behaved in an awful fashion. The situation escalated so quickly, it might seem there was history between these two men.
Fifth, Judge Nelson, like all criminal defendants, is entitled to the presumption of innocence. Yet, his attorney does not seem to dispute the underlying conduct--how could he, it is on camera. Here, unlike Judge Ross, Judge Nelson seems to have been truthful during the investigation.
The ethical issues here are complex. I have asked Professor Arthur Hellman to share a guest post on this matter, which I will post after mine.
This video just seems relevant.
Update: David Lat offers this update at Original Jurisdiction:
On the subject of a bad day, the first clerk shared with me that Judge Nelson has been going through a difficult time personally right now: "His father recently had a heart attack (which he thankfully survived), and other family members have been dealing with cancer. I haven't spoken to him about the incident, so I don't know if any of this played into it, but I can certainly imagine it."
Josh Blackman did some sleuthing, and based on the surveillance footage and Google Maps, he concluded that the parking lot where the incident transpired belongs to a Home and Hospice Center. So it certainly seems at least possible that Judge Nelson wasn't in a good state of mind when he had the parking argument.
Law Students: Interested in Helping With Cite-Checking on the Journal of Free Speech Law?
Our Journal of Free Speech Law is faculty-edited, and we have a part-time professional proofreader and bluebooker. Also, because most of our authors are full-time American law professors, they generally have research assistants who do the cite-checking.
But some of the time we do need students to help with cite-checking. We've been fortunate to have such people helping us over the years, but we'd like to add a couple more as well.
I realize that this is not like a normal law review: It will likely involve both less work and less responsibility. On the other hand, you'll get to read what we hope will be very interesting scholarship, participate in the process of publishing it (plus see your name in print on the masthead; the title is "Production Editor"), and further practice your cite-checking skills.
If you're interested, please e-mail me at volokh@stanford.edu. Just to be clear, as with other law reviews, we're looking for volunteers, though we hope that the students who participate will find this professionally valuable.
By the way, if some of you have already done this in past years, but would like to continue even while you're practicing lawyers, we'd of course be happy to have you back. I'm reluctant, though, to impose on people who have graduated and have paying jobs that take up their time unless they've affirmatively made clear that they'd enjoy doing this sort of task as well.
Keep the Blockade of Iran in Place
The government of Iran is likely to experience real regime change, and to surrender unconditionally in two to four months.
New Iranian attacks in the Persian Gulf are being easily and successfully countered by U.S. Armed Forces. Those attacks should not obscure the fact that President Trump is pursuing a brilliant foreign policy with respect to Iran that he should absolutely stick to.
President Trump is succeeding where Presidents George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Joe Biden all failed. The blockade of Iran will likely produce real regime change if it is left in place for another six to eight weeks, and the new Government of Iran will surrender its nuclear stockpile and will reopen the Strait of Hormuz unconditionally.
Iran is losing $500 million a day and 90% of its trade passing through the Strait of Hormuz as a result of the blockade. No government can continue to govern and escape a revolution on the streets in this situation. Tellingly, no U.S. soldiers are dying, and President Trump is on track to win the United States' biggest foreign policy victory since the peaceful collapse of the Warsaw Pact and of the Soviet Union because of the policies of President Ronald Reagan.
President Trump has very wisely let two conditions shape his negotiations with Iran over the last two months. First, he has insisted that Iran surrender its stockpile of 60% enriched uranium and end its efforts to develop a nuclear bomb. Second, he has rebuffed Iranian demands that Iran be allowed to charge a toll on any ship passing through the Strait of Hormuz. Both demands are eminently reasonable. Yet the Iranian Revolutionary Guard Corps (IRGC), which is now the effective de facto government of Iran, is flatly rejecting both demands.
The IRGC is in a position of extreme weakness right now. It has been unable to pay its soldiers for weeks, and they are defecting in droves. The IRGC has filled all the storage tanks with oil, which it can store, and Iran may soon have to permanently shut down some oil wells, which will permanently damage them. Inflation is at record highs, especially for food; the currency has plunged to the point of being worthless; and even before the war, a super-majority of the Iranian public was furious with the regime. In six to eight weeks, the Iranian people will likely revolt in the streets, and the IRGC will have no troops to put down the popular uprising.
"Why Can't California Count?"
Eli McKown-Dawson (Silver Bulletin) writes (introduced by Nate Silver):
California is notoriously slow at counting its ballots. In 2024, it took California until November 8 (three days after Election Day) to get just 70 percent of its ballots counted. Across all 50 states, the average share of the vote counted by that date was more than 95 percent, putting California squarely in last place. Rest assured, The Golden State did eventually hit that 95 percent mark … a full 10 days later….
Florida now manages to count 99 percent of its ballots within a few hours of polls closing, in part because election officials can process ballots before the polls close. And they are able to accomplish this feat of incredible speed with a sizable proportion of mail votes — about 27 percent in 2024…. Colombia held a presidential election on Sunday, and 99.98 percent of the result was in on Monday morning. Japan also counts most of its votes overnight. And in the UK (not exactly a poster child for state capacity), you can generally expect to have calls for all 650 parliamentary seats the morning after the election….
Nor is the problem inherent in California's choice to promote mail voting:
Mail-voting states such as Oregon, Washington, and Colorado count slowly relative to the US average, but they're all faster than California…. [And y]ou can make voting accessible without bending over backward to accommodate the tiny share of people affected by extending the mail ballot receipt deadline [to one week after the election, as California has]….
And slowness doesn't seem to be the price one needs to pay for accuracy:
There's no evidence that voter fraud or other election administration issues are any less prevalent in California than in faster counting states. Based on the Elections Performance Index — a project that compares election administration quality across states — California ranked 41st in 2024. So the state isn't slower and better: it's slower and (often) worse….
If you want people to be confident in your electoral system, a good first step is to build one that works properly instead of adding yet another example to the "California is a failed state" pile.
AI Remember Doing the Time Warp
Madness takes its toll.
I asked Claude, "Under the federal law clerk hiring plan, when can a recommender e-mail or call a judge to recommend a student?" Claude responded, in part,
Judges will not accept applications or recommendations before 12:00 pm EDT on Monday, June 8, 2026. (That's today — recommendations became permissible at noon Eastern today.) uscourts
For those reading this post later, note that I wrote this and asked Claude this on Sunday, June 7, 2026 (shortly after 12 noon Eastern). AI is indeed the future.
Today in Supreme Court History: June 7, 1965
6/7/1965: Griswold v. Connecticut is decided.
Open Thread
What’s on your mind?
Judge Ryan Nelson (9th Cir.) Charged with Battery for Allegedly Knocking off Man's Glasses in Parking Space Dispute
Idaho State Journal (Jimmy Hancock) reports (including video):
U.S. 9th Circuit Court of Appeals Judge Ryan Douglas Nelson faces two criminal charges [for] {misdemeanor battery and malicious injury to property} after police say he battered a man by swiping the glasses from his face, tossing them across an asphalt lot and stomping on them during an April confrontation over a parking space in Idaho Falls….
The alleged victim says Nelson's truck was angled into a parking space — the bulk of his truck in one spot with the right front tire and bumper hanging over the right line and into the spot to the right and the left rear part of the truck hanging over the left line and into the parking space to the left, effectively blocking three parking spots in the lot directly in front of the nearby businesses.
Gordon-Darby Prepares to Renew Effort to Commandeer New Hampshire in Order to Maintain Emissions Testing Contract
Since it lost its first case on technical procedural grounds, the company plans to try again.
Gordon-Darby Holdings had a lucrative contract running New Hampshire's vehicle emissions testing program. Understandably, Gordon-Darby was disappointed when the New Hampshire state legislature repealed the program and canceled the contract. So Gordon-Darby did what many companies would do: It filed suit seeking a court order requiring New Hampshire to maintain the testing program.
Lacking any contractual basis for its suit, Gordon-Darby claimed that New Hampshire was required to maintain its vehicle emission testing program under the federal Clean Air Act. The problem for Gordon-Darby is that the Clean Air Act does not actually require states to do anything, in that states are not forced to adopt or enforce any pollution control measures. Rather, the Act seeks to induce state cooperation by threatening various sanctions if states do not comply, such as a loss of federal funding and the imposition of federal regulations. The Act is structured this way because a direct imposition on the state would be unconstitutional, as the federal government conceded to the Supreme Court when these issues were litigated in the 1970s. Since then, the Supreme Court has made explicit that federal law cannot force states to adopt, implement, or enforce a federally desired regulatory program, as any such requirement would be unconstitutional commandeering.
Gordon-Darby first suit foundered when the U.S. Court of Appeals for the First Circuit concluded the litigation was premature. As the district court had looked more favorably on the claims, Gordon-Darby announced its plans to try again. Accordingly, it filed a new notice of intent to sue, raising the same claims.
In the first litigation, the state largely defended on narrow technical grounds, and largely failed to raise the commandeering defense. In my view, this was a mistake, as the anti-commandeering doctrine is quite clear and, in some respects, has its roots in a nearly identical conflict, when the EPA sought to force states to adopt vehicle emission inspection programs in the 1970s. Thus even if Gordon-Darby overcomes the various technical hurdles to filing suit, it has no claim, as it is asking for relief that federal courts cannot lawfully provide.
As Gordon-Darby filed its new notice of intent to sue on May 8, I suspect this means we will see a suit filed in early July. Stay tuned.
Is the Endangered Species Act Being Used to Commandeer State Governments?
A webinar discussion of whether we are seeing conservation commandeering.
Environmental organizations have filed citizen suits against state and local governments alleging that their failure to regulate more stringently, or their issuance of permits to particular activities, violate the Endangered Species Act (ESA). In effect, these suits seek to hold state and local governments vicariously liable for harms to listed species.
There are questions about whether the ESA should be interpreted or applied in this fashion. There are also questions about whether the imposition of vicarious liability on state and local governments violates the anti-commandeering principle under New York v. United States, Printz v. United States, and NCAA v. Murphy.
Last week I hosted a Federalist Society forum, "Commandeering for Conservation?" in which Jonathan Wood of PERC and William Snape of American University's Washington College of Law discussed and debated this question.
For what it is worth, I am with Jonathan Wood on this question, for reasons I explained in this post (and will elaborate on in a forthcoming paper).
Today in Supreme Court History: June 6, 2005
6/6/2005: Gonzales v. Raich is decided.
Open Thread
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Bernie Sanders' Dangerous and Unconstitutional Plan to Expropriate AI Firms
The plan to seize 50% of AI firms' stock violates the Takings Clause of the Fifth Amendment. It would also create dangerous government control over a vital industry, in ways similar to Trump's policies.
In a recent New York Times article, socialist Sen. Bernie Sanders presented a proposal to have the federal government expropriate 50% of the stock of major AI producers. If enacted by Congress, the plan would violate the Takings Clause of the Fifth Amendment.
Sanders justifies this expropriation by claiming that AI was produced through the "collective knowledge of humanity":
Artificial intelligence was not created out of thin air. The data and language used by generative A.I. tools didn't just pop into Sam Altman's head or Elon Musk's imagination. A.I. is built on our collective intelligence: our books, songs, artwork, journalism, computer code, scientific research, videos, conversations, images and ideas spanning generations. That is not just the opinion of Bernie Sanders.
For the most part, tech oligarchs have fed this knowledge into their A.I. models without permission, without acknowledgment, without compensation. In other words, the creative work of millions of people — writers, artists, musicians, journalists, teachers, scientists and ordinary citizens — has essentially been stolen by some of the wealthiest people in the world. It's time for us to reclaim it.
Since A.I. is built on the collective knowledge of humanity, the wealth it generates must benefit humanity.
The Takings Clause of the Fifth Amendment states that the government may not take "private property" without paying "just compensation."As Richard Epstein and Eduardo Penalver – leading takings scholars with widely divergent views on most political and legal issues – explain in a joint essay on the Takings Clause for the National Constitution Center, "the guarantee of just compensation must apply at the very least to cases in which the government engages in the outright confiscation of property." Stock is private property, and seizing 50% of the stock value of major firms is a pretty obvious case of confiscation.
And it does not matter that Sanders proposes to take "only" 50% of the stock, rather than 100%. If the government seizes half your house or half of your business, that's still a taking. Indeed, the Supreme Court has held that seizing a much smaller proportion of a property is a taking, as in the famous case of Loretto v. Teleprompter, where New York City required the owner of a building to give up a small portion of the roof to put a cable box there. The same principle applies here.
Sanders refers to the seizure as a "one-time 50 percent tax." But that labeling doesn't matter. It's still obviously an expropriation of property, and not simply a tax on the income it generates or even a property tax. One of the key elements of property rights is control over its use. Sanders makes clear that seizing control for the government is a major objective of the proposal. There can be situations where the boundary between a tax and a taking is fuzzy. But this proposal is very obviously on the taking side of the line.
If merely labeling an expropriation like this a tax could immunize the government from takings liability, they could use the same trick to expropriate virtually any property without compensation. Thus, they could take over your house by claiming that it's merely an in-kind tax payable in the form of land-use rights. They could take over any business or charitable organization by claiming that it's a one-time tax payable by turning over the right to control all the organization's activities. And so on.
Sanders could potentially get around Takings Clause constraints by abandoning outright confiscation, and instead having the government pressure firms into giving up control by using regulatory pressure, offering subsidies, or imposing unconstitutional export taxes on those that refuse to comply. Donald Trump has actually used tools like these to acquire stakes in various firms, such as Intel. The Trump administration has recently been considering using such shenanigans to acquire stakes in major AI firms.
The Trump-like approach is, I believe, also subject to a variety of legal objections. But it's less obviously unconstitutional than Sanders' plan for outright confiscation.
In addition to being unconstitutional, the Sanders plan - like Trump's similar policies (which I have forcefully criticized) - is awful on moral and policy grounds. Sanders justifies it on the basis that AI has been "built on the collective knowledge of humanity." That "reasoning" could justify confiscating virtually any property. Pretty much every productive activity relies, in part, on knowledge accumulated by other people previously. Your house, your cellphone, your car, and your refrigerator, are all based on previously developed scientific and other knowledge. Anyone who writes a book or an article is likely building accumulated knowledge, some of it accumulated over many centuries. My writings on democratic theory rely, in part on, ideas that go all the way to the origins of democracy in ancient Greece.
AI producers, like almost everyone else, are building on accumulated knowledge. But they nonetheless make important new contributions, and the government has no right to expropriate them. Consumer choice and competition, not the government, should determine how much value to assign to the AI producers' products, not the state.
To the extent that AI producers may have illegally used others' intellectual property (by using "stolen" creative work, as Sanders puts it), the proper solution is not confiscation by the government, but lawsuits seeking damages. There are, in fact, a number of such cases currently ongoing. Expropriation of AI firms by the federal government would do nothing to compensate people whose intellectual property may have been used without proper authorization. It would just transfer the illegal profit from AI firms to the feds.
Sanders also argues that AI should be under the control of the government because it's an important technology that should not be left to the control of a few billionaires. But a century of experience with socialism shows that government control of major industries leads to horrific results: poverty, oppression, and even mass murder. And for reasons I outlined in detail in this piece, Sanders' brand of "democratic socialism" is unlikely to be much better than the authoritarian kind - nor is it likely to remain democratic for long.
Similar problems arise when right-wing nationalists like Trump seek to impose government control over major industries. On that point, see my 2024 article "The Case Against Nationalism," coauthored with my Cato Institute colleague Alex Nowrasteh. Indeed, the similarity between Trump's policies and Sanders' ideas is an example of how socialists and nationalists advocate similarly awful ideas. It's "Horseshoe theory" at work!
Sanders' progressive supporters would do well to consider whether they want the AI industry - or any major industry - to be controlled by the likes of Trump. Trump isn't the first right-wing demagogue to win an election, and he's unlikely to be the last. Don't give government powers that you are unwilling to have wielded by your political opponents.
It is not true that the only alternative is a few billionaires dominating everything. The AI market is in fact very competitive. Claude, ChatGPT, Grok, Perplexity, and others are rival products competing in this space, produced by different firms. New firms enter the market on a regular basis. And the firms' owners - including billionaires - know they can only make money by meeting consumer demand better than their rivals or at lower cost. That is, so long as they cannot instead rely on government handouts and cronyism of the kind likely to proliferate with greater state control.
AI does pose some risks, and there are legitimate arguments for constraining some types of uses, particularly when it comes to warfare and government surveillance. But the right approach there is restricting dangerous uses, not wholesale expropriation by the government. To the extent that AI is potentially dangerous, government monopoly control over that industry actually exacerbates that danger, by concentrating power in the hands of politicians and their cronies and henchmen.
In sum, Sanders' plan to expropriate a large part of the AI industry is unconstitutional. And it's terrible policy, to boot. On that score, it has much in common with Trump's economic policy agenda.
Court Dismisses Fraud Claim Against N.Y. Times Over "Young, Old, and Sick Starve to Death in Gaza" Photo
Among other things, plaintiff failed to allege "that the alleged fraudulent conduct induced ... the plaintiff into purchasing merchandise."
An excerpt from the long (and, I think, basically correct) opinion in Hoffman v. N.Y. Times Co., decided yesterday by Judge Evelyn Padin (D.N.J.):
Pro se Plaintiff Harold Hoffman brings this action against Defendant the New York Times Company …. Plaintiff's suit stems from an article published by the New York Times on July 25, 2025, titled "Young, Old, and Sick Starve to Death in Gaza: 'There Is Nothing'" along with the article's accompanying photo:
According to Plaintiff, the New York Times deliberately and misleadingly omitted the fact that the infant in the photo—an 18-month-old baby named Mohammed Zakaria al-Mutawaq (pictured with his mother, Hedaya al-Mutawaq)—was born with cerebral palsy, hypoxemia, and serious genetic disorders in order to advance an untrue narrative about the impact of the war between Hamas and Israel on those living in Gaza. Plaintiff also claims that the New York Times's publication of the Article runs in contravention of its motto "All the News That's Fit to Print." …
Plaintiff brings five claims under the NJCFA [N.J. Consumer Fraud Act] as well as one claim for common law fraud. The NJCFA prohibits:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice….
Here, Plaintiff appears to bring claims based on two affirmative misrepresentations—(1) publishing the Article and Photo knowing they were false/misleading and (2) the New York Times's Motto—as well as two knowing omissions related to the Article—(1) failing to include Mohammad's full health history in the Article and (2) removing his allegedly healthier older brother from the Photo….
Plaintiff Too Small to Challenge President Trump's Practice of Targeting Law Firms He Dislikes
From Judge Nathaniel Gorton (D. Mass.) today in Larrabee v. Trump:
J. Whitfield Larrabee …. alleges that since taking office, President Donald J. Trump … has engaged in a course of unconstitutional conduct (collectively, "the Policy") by issuing executive orders that punish and threaten to punish lawyers and law firms that he dislikes. Larrabee asks the Court to declare the Policy unconstitutional and to enjoin President Trump and other named defendants … from taking any such action against him….
In March, 2025, President Trump issued a memorandum to the Attorney General and the Secretary of Homeland Security titled "Preventing Abuses of the Legal System and Federal Court." That Memo directed the Attorney General to seek sanctions against attorneys and law firms who engage in "frivolous, unreasonable, and vexatious litigation against the United States." It also directed the Attorney General to review conduct of attorneys and their law firms in litigation against the Federal Government over the past eight years and, if any misconduct were to be identified, to recommend additional steps to be taken, including reassessment of security clearances and federal contracts.
Contemporaneously, President Trump began to issue Executive Orders ("EOs") that purported to address the conduct of and risks posed by specific law firms. Plaintiff alleges that such EOs targeted law firms based on their past representation of clients and causes disfavored by President Trump. The EOs restricted the access of those law firms to federal buildings and limited official interactions between federal government personnel and their attorneys. Several law firms agreed to provide substantial pro bono work favored by President Trump in order to avoid being subject to similar EOs….
Plaintiff, an attorney and self-described adversary of President Trump, alleges that he has a history of engaging in litigation against President Trump and has represented causes disfavored by him. He says:
[s]o long as Trump is President, [he] intend[s] to make additional legal complaints against Trump's businesses, family members and associates where there are good grounds to do so.
He contends that he faces "a credible threat that the policy will be enforced against [him]" if he follows his intended course of conduct. He further claims that he has been deterred from representing particular clients and has been "engaged in self-censorship" out of fear of such enforcement….
