Degradation (started 9:53 AM Nov 12, 2026)
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The court reverses its precedent, dating back to 1846, that held such revival unconstitutionally restricted the defendant's "vested rights" not to be sued, which had been created by the earlier statute of limitations.
From H.C. v. Nesmith, decided last week by the Arkansas Supreme Court, in an opinion by Justice Nicholas Bronni, joined by Justices Courtney Rae Hudson, Cody Hiland, and Rhonda Wood (note that other state courts are split on this question, see, e.g., this post and this one):
This case presents a particularly important question: Can the General Assembly extend the statute of limitations in cases where it has already run and afford child-sex-abuse victims an opportunity to hold their abusers accountable? … [T]his court's vested-rights precedent … categorically bars "expand[ing] a limitation period so as to revive a claim already barred." …
Revisiting our vested-rights precedent, we conclude that it lacks any constitutional basis and, as such, cannot stand. We therefore overrule our prior cases prohibiting the legislature from expanding a limitations period and thereby reviving time-barred claims [and] uphold the Vulnerable Victims of Sex Abuse Act against Nesmith's constitutional challenge ….
[Under] our vested-rights precedent …, "the legislature cannot expand a statute of limitation so as to revive a cause of action already barred." That doctrine rests on the assumption that when a civil statute of limitations runs, a tortfeasor has a vested right to the property that could have been the subject of a potential claim….
[But] our cases do not cite any constitutional basis for that doctrine. Far from it, when we first employed that principle to strike down legislation in 1933, we instead relied on a single legal encyclopedia published in 1915 assuring us that—at that sole moment in time—most jurisdictions held that legislatures could not revive a claim after a statute-of-limitations defense had run. Or, perhaps more generously, we relied on that legal encyclopedia plus an unreasoned extension of this court's prior case law suggesting that to retroactively alter an applicable statute of limitations, the legislature needed to speak clearly and show it had considered the consequences. That approach, unbound by actual text or constitutional history, is not consistent with our constitutional role….
To be sure, some later cases—perhaps recognizing that our earlier cases do not cite any constitutional language supporting our vested-rights precedent—suggest that precedent rests on due-process principles…. [But] that label does not work because the expiration of a statute-of-limitations period does not confer a property right—or any other right for that matter.
From Hinckley v. Univ. of Wyoming, decided Aug. 28 by Judge Scott Skavdahl (D. Wyo.), but just recently posted on Westlaw (appeal pending):
{Unless otherwise noted, these facts are uncontested.} Plaintiff … alleges that she was wrongfully terminated from her employment as a Marketing and Communications Specialist I at University of Wyoming because of her gender and in retaliation for protected workplace conduct….
Shortly after starting in her new role, Plaintiff began to display job performance issues, including being late to work, treating others poorly, and making mistakes. Some of these performance issues may have been due to the lack of oversight and direction supplied by [Marketing Manager] Cattelan, but Cattelan was not Plaintiff's supervisor. Nevertheless, Plaintiff made numerous mistakes that were not a result of Cattelan's lack of guidance or oversight.
From Commonwealth v. Ashford, decided two weeks ago by a Pennsylvania appellate court, in an opinion by Judge Mary Murray, joined by Judges Timika Lane and Kate Ford Elliott:
The trial court summarized the evidence adduced at Appellant's jury trial …
On February 11, 2023, … [(Ms. South)] was carjacked in Reading City, Berks County, Pennsylvania, by three men in black balaclavas[, one of whom] brandish[ed a] handgun[ ] with blue laser sights….
The evening prior, on February 10, 2023, a video [("the video" or "the YouTube video")] was uploaded to the online video sharing platform[,] YouTube[,] depicting Appellant and [two] other men in black balaclavas handling and displaying various firearms with blue laser sights, including a purple Glock handgun. [The video was admitted into evidence and played for the jury at trial, albeit without sound.] The video itself is undated, though Appellant appears to be around the same age [in the video and at the time of the offense,] and is depicted wearing the same sweatshirt in which he was apprehended ten days later.
I was very pleased to see that Elliot Gaiser was nominated to the Federal District Court for the Northern District of Texas. I've seen some suggestions that Elliot does not have sufficient ties to Texas to support the nomination. Federal district court judges are required to live in their district upon confirmation. Indeed, I can think a number of recent appointees who have been nominated to courts in districts where they did not live in, and may not have lived in since their childhood.
Still, I think it may be useful to lay out some of Elliot's ties to my adopted home state of Texas. You see, not all of us were fortunate enough to be born in Texas, but we all got here as quickly as we could.
For starters, I've known both Elliot and his wife Alexandra since before they started dating. He was at the University of Chicago and she was the University of Texas. (I spoke at both of their FedSoc chapters while they were students.) Indeed, Elliot and Alexandra started dating long distance with knowledge that they would both be clerking in Houston--Elliot for Judge Edith Jones and Alexandra for Chief Judge Jennifer Walker Elrod. I got to know both of them even better during their clerkship year.
Elliot's grandma has lived in Houston since Elliot was a child. Alexandra's immediate family is in Dallas, including her parents, brother, sister, and more. Alexandra's dad, Allen Harrison, is the president of Medical City Dallas and is the incoming chair of the Texas Hospital Association. Elliot and Alexandra were married in Texas, and their children were dedicated at that same chapel.
After clerking for Judge Jones, Elliot was at the D.C. Office of Gibson Dunn, and worked closely with the Dallas office. Elliot was on the briefing with James Ho and the First Liberty Institute for Sause v.Bauer before the Supreme Court. Elliot also worked on the Indian Child Welfare Act litigation in the Northern District of Texas. He represented Texas families who were seeking to adopt children of Indian descent. Elliot worked on the case in Judge Reed O'Connor's courtroom in the Northern District of Texas and before the Fifth Circuit. That case was also litigated in Texas State Court. In the Interest of Y.J. (also referred to as Y.R.J.), a Child, Trial Court Cause No. 323-107644-18, 323rd District Court, Tarrant County, Texas (Honorable Alexander Han Kim / Judge Alex Kim). Elliot also worked with the Dallas-based trial team at Gibson Dunn in the AT&T/TimeWarner antitrust suit.
Elliot and Alexandra have been closely connected to the Texas conservative legal movement. Alexandra interned for Sen. Cornyn's judiciary committee staff under Chief Counsel Matt Johnson and later Chief Counsel Noah Phillips. Alexandra is on the Steering Committee of the Texas Review of Law & Politics, where she served as Editor in Chief. Alexandra and Elliot are regular attendees at the annual TROLP banquet dinners. (Both of the Texas Senators are recipients of the coveted "Jurist of the Year" bobblehead, though mine is the most glamorous.) Elliot has spoken at the Texas Chapter Conference, and routinely attends Texas FedSoc happy hours and other gatherings.
Elliot is deeply respected by members of the Texas conservative legal movement. This evening, he attended the Texas FedSoc gathering at the Mayflower and we are all pulling for him. He would make a stellar judge and fill a seat that cannot be left empty.
Judge Richard Posner passed away yesterday. Posner was one of the greatest legal scholars of all time, one of the founders of the field of law and economics, and probably the most influential lower-court federal judge of the last several decades. His contributions across a wide range of fields are so great, that no obituary can possibly do them justice.
As a longtime professor at the University of Chicago Law School, Posner was a pioneer of the application of economics to legal issues. His book Economic Analysis of Law, (which has gone through numerous editions since the first one in 1973), was and is the best overview of the field. His classic articles on antitrust law, regulation, the economics of common law, and many related issues were pathbreaking applications of economics to law that continue to influence economists, legal scholars, and policymakers even many decades later.
In addition to his many contributions to law and economics, Posner also published enormously influential books and articles on a dizzying array of other issues. I can only mention a few here. His book Sex and Reasonis a tremendously insightful analysis of legal regulation of intimate relationships. How Judges Think and Reflections on Judging shed light on a variety of issues relating to judicial behavior, and legal philosophy. Law and Literature is one of the greatest books on the depiction of law in classic literary works. This list of pathbreaking Posner works can be extended almost endlessly!
Posner became a federal appellate judge in 1981 (appointed to the US Court of Appeals for the Seventh Circuit). There, he became perhaps the most influential federal lower court judge of his time, writing a variety of widely cited opinions. He was famous in legal circles for drafting almost all of his opinions himself, rarely relying on law clerks to do it.
A few of my own experiences with Posner and his work may shed some small additional light on the man and his achievements.
As a first-year law student, I was required to take an early-morning Contracts class. Not being a morning person, I periodically overslept and missed class (Posner, I'm sure, would never have done such a thing!). As a result, I was confused about some issues when final exam time came around. The class textbook was only of limited help in clearing up my confusion. So I decided to read the contracts chapter of Economic Analysis of Law. In a relatively few pages, Posner made everything much clearer, and I came to a much better understanding of a wide range of contracts issues than I had before, from studying the much longer textbook. Thanks to Posner, I did much better on the exam than I had any right to expect. He had a gift for distilling complex issues of law and public policy and making them readily understandable even to late-sleeping slackers!
A few years later, I was a law clerk for a federal appellate judge. Usually, when courts cite legal precedents, they do not indicate the name of the judge who wrote the decision. But my judge - who is more conservative than Posner and has a very different judicial philosophy - made clear that, when citing a Posner opinion, I should make sure to indicate Posner was the author. It's a small, but telling, indication of the respect Posner commanded from jurists across the political and jurisprudential spectrum.
Early in my academic career, I was co-editor of the Supreme Court Economic Review. One of the more difficult duties of academic journal editors is dealing with peer reviewers, who often procrastinate, submit inadequate reviews, or both. One time, on a Friday afternoon, I e-mailed Posner an article submission, asking him to review it. Due to his simultaneous work as legal scholar and judge, Posner was almost certainly much busier than most of our other reviewers. Still, on Saturday morning, I woke up to find a message from Posner in my e-mail inbox. I expected the message would indicate whether he accepted the assignment or not. But instead, I found an extremely thorough and insightful review of the article I had sent him - one of the best peer review reports I have ever seen. In addition to his many other achievements and talents, Posner was extraordinarily hard-working and efficient. He made most of the rest of us seem lazy and indolent by comparison.
In retrospect, I fear these writings did not always sufficiently convey the enormous respect - even awe - that I had for Posner's many achievements. But I did support his longstanding campaign to get rid of the Bluebook, the ridiculously overcomplicated system of legal citation. In general, I am not a fan of book-burning. But I was happy to follow Posner in making an exception for the Bluebook! For a time, we even collaborated on an effort to persuade law journal editors to rethink the system.
Much, much more can be said. No words of mine can even come close to doing justice to Judge Posner's many achievements, or to his generosity to students and younger colleagues, of which my own experiences with him were just small examples. Thus, I will close by offering my profound condolences to those of his friends, family, and colleagues, who might read this post.
UPDATE: For more on Judge Posner's life and achievements, see this obituary on the University of Chicago Law School website.
Even if a Republican wins the 2028 presidential election, it will be virtually impossible for the Senate to flip red during his term. In all likelihood, there will not be a Republican President with a Republican Senate until 2033. As a result, it is unlikely that any conservatives are appointed to the Supreme Court, or the lower courts, over the next six years. A friend suggested, mostly in jest, that Chief Justice Roberts should resign to allow his seat to be filled during divided government. But I suspect the Democrats would just keep the seat open for two, four, even six years.
Ed Whelan writes, "The number of current Trump appellate appointees who will be 55 or younger in 2033 will be 18, and only 6 of those will be 50 or younger." Here is my (approximate) list of judges who Trump circuit appointees who were born after 1977. The six judges in blue at the end are the only ones who would be under 50--none from Trump's first term.
Andrew Oldham 1978
Britt Grant 1978
Patrick J. Bumatay 1978
Matthew Schwartz 1978
Eric E. Murphy 1979
Daniel Bress 1979
Steven Menashi 1979
Robert J. Luck 1979
Andrew L. Brasher 1981
Emil Bove 1981
Allison Jones Rushing 1982
Justin R. Walker 1982
Rebecca Taibleson 1983
Joshua Dunlap 1983
Eric Tung 1984
Justin D. Smith 1985
Whitney Hermandorfer 1987
Benjamin M. Flowers 1987
Of course, this all assumes there is no Court "reform" and there will still be a Supreme Court to worry about in six years.
I would make one other observation. Several of the judges who are accused of "auditioning" will likely age out of the Supreme Court short list by 2033. Can we finally exit the audition trap? Let's treat each opinion they write as a reflection of their best judgment, and not some attempt to secure higher office.
There has been a momentous shift in the relationship between the President and the Senate, and most people have missed it.
Let's start with the Eighth Circuit. The Trump Administration interviewed Justice Cody Hiland, but determined he was not up to the task of being a circuit judge, so they offered him a federal district court seat as a consolation prize. Hiland shot back at the White House Counsel and refused the seat. He even wanted to rub it in Trump's face. The White House made a stellar nomination with Judge Lee Rudofsky. Hiland then told an entire room of law students about his experience as a lesson that should be learned. But Hiland had a friend in a high place. Senator Boozman of Arkansas lobbied Senator Tillis of North Carolina and Senator Cornyn of Texas to block Judge Rudofsky.
Apparently there were some discussions between the President and Boozman, and the President folded. Maybe Trump determined that he needed as many judges confirmed before January, so the identity of the judge didn't matter. Maybe Trump didn't want to create more problems with his caucus. Maybe Trump just didn't care. Who knows? Trump withdrew Rudofsky and nominated Hiland. There is no guarantee that Hiland gets a hearing and makes it through the process. We are so late in the game. And frankly, I wouldn't blame some of the other conservative senators from the Eighth Circuit for putting Hiland through the paces at the hearing. It's not clear to me he'll be able to answer all the questions. But regardless of what happens, Senator Boozman won and President Trump lost.
Now, onto my home, the Fifth Circuit. It is painfully clear there was some sort of deal between Judge Southwick and Senator Wicker. In no universe would the White House have picked Todd Butler without that deal. I've yet to hear anyone provide me a single shred of evidence that he is conservative beyond saying "All southern lawyers are conservative. Plus he's a Christian." What about Nathan Johnson and James Talarico? Moreover, Southwick announced on September 29 that he would take Senior Status, making it virtually impossible for another nominee to be selected.
Yesterday, I watched Butler's confirmation hearing with interest. He received a few softballs from Senator Grassley, a very warm welcome from Senator Kennedy, and some surprisingly nice questions from Senator Booker about representing police officers. Butler did not seem to understand departmentalism and mis-cited Marbury v. Madison. His answers were not particularly articulate--roughly on par with his oral argument before the Supreme Court. There was no depth or curiosity conveyed. I actually think Butler tripped up on Senator Blumenthal's questions about January 6 and the election, but it didn't matter. He sailed through. Members of the conservative legal movement have raised doubts about Butler. But there were no tough questions asked by Senators Cruz, Lee, Hawley, Schmidt, or others. Only they know why they stayed out. Senator Wicker prevailed, and the President lost.
Then there is the bizarre situation in Oklahoma. Someone yesterday asked me if I knew what Senator Armstrong was doing. My response was, "Who is Senator Armstrong?" He is the temporary senator appointed to fill Senator Mullins's seat. As Mike Fragoso relays, Armstrong is blocking the nomination of Zach West to the District Court in Oklahoma. This is all about some sort of squabble between West and defeated-AG Drummond. Armstrong returned a blue slip but is now trying to take it back. That's not how things work. If Armstrong prevails here, the President will lose.
Circuit seats belong to the circuit, and not to the state. It bothers me that "home state" senators introduce circuit court nominees. That pageantry reinforces the wrong message. Hiland's seat does not belong to Arkansas and Butler's seat does not belong to Mississippi.
Unfortunately, Trump's surrender here has created a terrible precedent. Should the Republicans ever again return to power, I would hope this entire process is reconsidered. Circuit court nominees should be treated as "at large" seats. Senators can make recommendations, but they cannot dictate who is picked. Worse, judges (like Southwick) should not be allowed to make these deals. We should not tolerate incentive structure where motivated actors can control who represents an entire circuit. Maybe the better approach is to start consulting with all the Senators in a given circuit on possible picks, and then pick the best athlete.
From McIntyre v. Little Miami School Dist., decided Monday by Judge Matthew McFarland (S.D. Ohio) (appeal pending):
Plaintiff George McIntyre is a teacher at Little Miami High School, a school within Defendant Little Miami School District ("District"), where he teaches American History and Advanced Placement European History. McIntyre placed a poster in his classroom displaying the slogan "Hate Has No Home Here" ("Poster"), depicted below:
As shown above, the Poster features five hands holding hearts filled with distinct symbols, including the American flag, a peace sign, the rainbow pride flag, and the transgender pride flag. McIntyre hung up the Poster to remind his students to "treat all their classmates with mutual respect, regardless of personal opinions or beliefs." …
The District's "longstanding practice" has been to permit teachers to decorate their classrooms and display personal items. That latitude, however, is "defined by" the District's Little Miami School Board ("Board") policy.
"Why not seek the win/win?" Justice Brett Kavanaugh posed that question to Colorado's attorney during last week's oral argument in St. Mary Catholic Parish v. Roy, a case involving Catholic preschools and the state's nondiscrimination requirements. His question raises a broader issue: Why is compromise so difficult in conflicts between religious freedom and LGBTQ rights?
Some background: Colorado operates a universal preschool program that provides public funding for children attending participating schools, including religious schools. But participating schools must agree not to discriminate on several grounds, including sexual orientation and gender identity. Catholic preschools argue that these requirements interfere with their religious mission, which includes teaching Catholic doctrine about marriage and requiring families to support that teaching. Colorado maintains that religious schools may participate, but must comply with the same nondiscrimination requirements as other schools.
During oral argument, Kavanaugh noted that approximately 2,000 preschools participate in Colorado's program, while only 34 Catholic preschools are involved in the dispute. The record does not identify any family headed by a same-sex couple that has sought admission for a child to one of these schools and been rejected. Why couldn't Colorado accommodate these schools while ensuring that other families had ample preschool options?
Colorado's attorney responded that equal access to publicly funded education requires more than the availability of alternative schools. The Catholic schools have a principled position as well. Why should they have to compromise their religious identity to participate in a generally available public program? They aren't asking Colorado to endorse Catholic doctrine, only to permit them to maintain their religious mission.
So why is compromise so elusive? St Mary illustrates a dynamic I wrote about in an article several years ago on Masterpiece Cakeshop, another Colorado religious freedom controversy. I argued that conflicts over religious freedom and LGBTQ rights reflect profound cultural divisions in American society. These controversies implicate competing understandings of identity, dignity, and equality.
For traditional religious believers, marriage and sexuality implicate fundamental religious convictions. Requiring religious schools to disregard those convictions in their admissions policies seems like an intrusion on religious autonomy. For supporters of LGBTQ rights, allowing publicly funded schools to exclude children because of their parents' relationships seems like a denial of equal dignity and citizenship. Each side regards the other's position as demanding a concession on something fundamental. Besides, each side may think it has compromised enough. Colorado doesn't prohibit religious instruction in funded schools; the schools don't ask Colorado to endorse their position on same-sex marriage.
This isn't the first time the Court has confronted such a problem. About a decade ago in Zubik v. Burwell, Justice Elena Kagan explored possible accommodations in a contraception mandate controversy, and the Court subsequently sought additional briefing on a compromise.
Kavanaugh's question makes practical sense. The difficulty is that the parties don't understand the controversy primarily in practical terms. Each sees fundamental principles at stake. The Court will resolve the legal dispute in St. Mary. But it cannot resolve the deeper social divisions that make compromises in these cases so difficult.
I discuss these questions in a new episode of Legal Spirits, available here.
[T]he story begins with a viral video of a parking-lot argument. Convinced that one of the women [Couture] had broken the law, Noshirvan set out to uncover her identity. He deployed a "sock puppet" social media account, posing as a concerned bystander to gain her trust. The ruse worked, and Couture unwittingly confirmed her involvement. Armed with that info, Noshirvan published a TikTok video broadcasting both Couture's name and her employer—Garramone Plastic Surgery.
Noshirvan's followers quickly took to the comments with ideas for how to retaliate. One suggested to "schedule appointments and not show up[.]" Another pitched calling Garramone Plastic Surgery to ask about Couture. And two users went so far as to agree that "we are now working on reviews for his business[.]" Just as the comments suggested, Garramone Plastic Surgery received emails, voicemails, and fictitious reviews….
Apparently having endured enough of this negative publicity, patients cancelled their scheduled procedures, a physician left the practice, and Garramone Plastic Surgery hired security personnel and installed an enhanced security system. Garramone Plastic Surgery now seeks to recover those damages….
The court held that Garramone's tortious interference claim against Noshirvan could go forward:
In U.S. v. Alexander, decided yesterday by Judge Paul Engelmayer (S.D.N.Y.), the criminal complaint (which yielded an indictment) alleges:
[O]n or about August 20, 2025, [Alexander] sent threatening electronic messages via a social media application … to the spouse ("Victim-1") of a U.S. Immigrations [sic] and Customs Enforcement ("ICE") deportation officer ("Officer-1"). The first message stated, "Are these your kids you had with your Nazi murder rapist husband. They will get it too. Never think that his whiteness will protect them." The second message consisted of a photograph of Victim-1's and Officer-1's children….
Defendant argued her speech was protected the First Amendment, but the court declined to dismiss the indictment:
The Republicans may be able to effectively bottle up the impeachment in committee for the rest of the current Congress (which ends on January 3, 2027). But it will almost certainly come back in the new Democratic-controlled Congress. With approximately 260 seats in the new House, the Democrats (virtually all of whom support impeachment) should easily be able to vote to impeach. At that point, it will be harder to get the necessary 11 or more Republican votes needed to secure the required 2/3 majority to convict in the Senate (the Democrats will have 54 to 56 seats in the new Senate, depending on the outcome of still-incomplete vote counts in Alaska and Mississippi). But Hegseth will at least have to go through a trial focused on his role in the unconstitutional Iran War, and in the murder of over 200 people in "drug boat" strikes in the Caribbean and the Pacific, among other charges.
And, though it's a steep hill to climb, it is by no means impossible he might actually get convicted, as he is very unpopular on Capitol Hill (and elsewhere), and the evidence against him is strong. It is notable that House Republicans chose to use this procedural maneuver rather than just vote down the impeachment directly. It suggests they might not have had the votes to do the latter.
In previous posts, I explained in much more detail why Hegseth deserves to be impeached and convicted, and considered an excellent article on the subject by prominent conservative national security law expert Andrew McCarthy (who reaches similar conclusions).
It ain't over till it's over - and this one is far from that point.
Trump v. Slaughter affirmed the President's presumptive power to remove principal officers (other than members of the Federal Reserve Board). But does this power also extend to inferior officers? And is it constitutional for Congress to effectively insulate some inferior officers from presidential removal?
Today, in Abramowitz v. Lake, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court injunction barring the removal of Michael Abramowitz, the head of the Voice of America. In the process, it rejected the Department of Justice's arguments that the district court lacked jurisdiction to consider the case and held Congress may (as a practical matter) insulate inferior officers by presidential removal by vesting removal authority in the hands of an agency head that requires Senate confirmation.
Judge Pillard wrote for the panel, and was joined by Judges Srinivasan and Pan. Here is how she summarized the opinion.
Seeking to preserve the journalistic integrity of the news broadcasters within the U.S. Agency for Global Media, Congress empowered a separate agency, the International Broadcasting Advisory Board, with final authority over the hiring and firing of the broadcasters' heads-of-network. The leaders of the Agency for Global Media ignored that statute when they attempted unilaterally to fire Michael Abramowitz, the head of Voice of America. Abramowitz sued, and the district court permanently enjoined
the Agency for Global Media from removing Abramowitz without the International Broadcasting Advisory Board's approval.
We affirm the injunction. The district court had jurisdiction to enforce the statutory requirements governing the Voice of America directorship. Those statutory requirements are consistent with Article II. And the district court had equitable power to enjoin defendants from effectuating the illegal termination.
While acknowledging that, as a general matter, Congress has channeled litigation concerning allegedly improper removal of government employees to the Merit Systems Protection Board under the Civil Service Reform Act, the panel concluded that this general rule does not apply to the VOA as "Congress gave no hint" that it sought to divest district courts of jurisdiction to hear cases such as this when it revised the statute governing VOA in 2021. The removal protection of the VOA head "is not a standard employment law," according to the D.C. Circuit, "but a durable barrier against any breach of the firewall protecting the journalistic integrity of Voice of America." Writes Judge Pillard: "Congress had no reason to channel Abramowitz's claim through the CSRA, and every reason not to."
On the merits, the panel concluded Congress lawfully insulated the head of the VOA--an inferior officer--from removal by the President by vesting authority to appoint and remove the head of VOA in the International Broadcasting Advisory Board (IBAB).
IBAB is a seven-member "separate independent agency," the members of which must be bipartisan and are subject to Senate confirmation. IBAB is the relevant department head, even though it does not directly supervise VOA, as that job is performed by the U.S. Agency for Global Media--an arrangement the panel concluded is lawful under Morrison v. Olson.
The Department of Justice argued this unconstitutionally constrains the President's removal power, but the court was unconvinced.
Wrote Pillard:
So long as the President has adequate control over the department head, and the department head can control the inferior officer (as is the case here), the President can transitively control the inferior officer. The department head's supervision "preserv[es] the chain of command in Article II." Braidwood, 606 U.S. at 754.
Yet the practical effect of the court's ruling is that there is nothing the President can do to replace the head of the VOA. Six of the seven IBAB seats are currently open (having been removed by President Trump in 2025). Thus the Board is inquorate, and lacks the ability to remove the head of the VOA (or do much else). And, should Congress refuse to confirm new IBAB members, the current VOA head will remain in place. The DC Circuit may conclude this arrangement formally leaves the President with "adequate control" over the Board, but what good is control over a department head that is incapable of acting?
I suspect the Administration will seek further review, ultimately in the Supreme Court. The question is whether it files a petition for certiorari right away, or first seeks rehearing en banc. While there is no likelihood the full D.C. Circuit will disturb the panel ruling, a petition for rehearing en banc might generate a dissent that could help attract the justices' attention. This case would also give the justices the opportunity to revisit Morrison v. Olson and say more about the extent to which inferior officers may (or may not) be insulated from presidential removal.
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