The Volokh Conspiracy

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Free Speech

Petitioner's Regret No Grounds for Sealing of 8-Year-Old Restraining Order Documents

Petitioner's new-found "public figure" status, and concerns that records are "impeding his employment, professional credibility, and personal safety," don't justify sealing, either.

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From Thursday's decision by California Court of Appeal Justice Natalie Stone, joined by Justice John Segal and L.A. Superior Court Judge Alexander Giza, in J.E. v. A.C.:

In April 2016 J.E. filed a petition for a domestic violence restraining order against his then-ex-girlfriend, A.C., and a temporary restraining order was granted pending the hearing on a permanent restraining order. J.E. did not appear at the hearing, and the court dissolved the temporary restraining order and dismissed the case without prejudice for lack of prosecution.

More than eight years after filing the petition, in November 2024, J.E. filed a motion to "seal or destroy" the record of the restraining order proceeding. He cited the "sensitive nature of this matter and the parties' current relationship" and argued "[p]ublic dissemination of this motion and the underlying records could cause irreparable harm to the parties' reputations and privacy," as well as "professional challenges[ ] and emotional distress." …

J.E. supported his motion with a declaration stating he and A.C. had reconciled and were now life partners. He explained he requested the restraining order when the parties "were navigating a complex and emotionally charged dynamic, which led to misunderstandings and impulsive actions on my part." J.E. stated A.C.'s attempts to contact him were "not motivated by malice or harm but rather by her deep affection and immaturity at the time."

He stated the continued existence of the records had drawn "unwanted scrutiny" in his personal and professional life and undermined the couple's efforts to "build a positive future together." He concluded, "I deeply regret filing the restraining order petition in 2016 and have since come to understand the situation in its proper context. [A.C.] had no harmful intentions, and my actions were a reaction to misunderstanding and emotional distress. Destroying these records would bring closure and allow us to continue building our lives together." …

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Alcohol

Fifth Circuit Strikes Down Federal Law Banning Home Alcohol Distilleries

The ruling holds the law exceeds Congress' authority under the tax power and the Necessary and Proper Clause. But it does not consider the Commerce Clause.

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Home distilling. (NA)

 

Yesterday, in McNutt v. US Department of Justice, the US Court of Appeals for the Fifth Circuit struck down an 1868 federal law banning home alcohol distilleries. The court ruled that the law exceeded Congress' authority under the taxing power, and also under the Necessary and Proper Clause. It's an important win for constitutional federalism - as well as for home alcohol distillers! But it's significance is limited by the fact that the court did not consider the possibility that the law is authorized by Congress' power to regulate interstate commerce.

The decision was written by prominent conservative Judge Edith Jones. But the unanimous ruling was joined by liberal Obama appointee Judge James Graves. It's an impressive, and somewhat unusual, cross-ideological agreement on the type of federalism issue that often splits jurists along ideological lines.

Judge Jones is, I think, undeniably right to argue that the tax power cannot justify this law:

[T]he power to "lay and collect Taxes" means Congress can charge or demand money from taxpayers. It is also obvious that the purpose of a tax is to raise revenue for the
government. Indeed, "the essential feature of any tax" is that "[i]t producesat least some revenue for the Government."NFIB v. Sebelius, 567 U.S. 519, 564 (2012)… (emphasis added)….

Section 5178(a)(1)(B) and Section 5601(a)(6) exceed these constitutional limits. Primarily, neither provision raises revenue. Not only do they prohibit at-home distilleries, but in so doing, they amount to an anti-revenue provision that prevents distilled spirits from coming into existence. Cf. 26 U.S.C. § 5001(b) (taxation begins "as soon as [the spirit] is in existence"). The provisions operate to reduce revenue instead of raising it. This violates the Supreme Court's explanation of how the federal power of taxation works: "[I]mposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice." NFIB, 567 U.S. at 574, 132 S. Ct. at 2600 (emphasis added). These plaintiffs have only the choice not to do as they wish or risk fines and imprisonment.

Exactly so.

The Fifth Circuit also concludes that the law in question exceeds Congress' authority under the Necessary and Proper Clause, which grants the power to makes laws "necessary and proper" for carrying into execution other federal powers. I think the court is right that the law in question is not "proper." The Supreme Court, in NFIB v. Sebelius (2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. See my analysis in this article. The power claimed here is clearly "great and independent." As Judge Jones notes, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

I am much less persuaded by the court's conclusion that the law here is not "necessary." In McCulloch v. Maryland (1819), Chief Justice John Marshall famously ruled that "necessary" includes any measures that may be "useful" or "convenient" for implementing an enumerated power. I am no fan of this formulation, and tend to believe Thomas Jefferson and James Madison were right to argue that "necessary" means something like "essential." But Marshall's approach is longstanding precedent, unlikely to be overturned. This formulation is so permissive that I cannot think of any other modern precedent that struck down a federal law on the grounds that it isn't "necessary."

Judge Jones instead relies on another passage from McCulloch, which defines "necessary" as "plainly adapted," and thus is potentially more restrictive. But "useful" and "convenient" are the standard formulations embodied in in numerous precedents. And, on that approach, the home distillery ban probably does qualify as "necessary." For example, it might be "useful" or "convenient" to advancing the government's goal of increasing tax revenue, by incentivizing people to engage in activities subject to taxation, rather than home distilling.

Even if the home distillery ban is "necessary," it still isn't "proper." The Fifth Circuit therefore got the bottom line right.

But I would not celebrate too much, just yet. Though this law is not authorized under the tax power or the Necessary and Proper Clause, it could pass muster under Congress' power to regulate interstate commerce, which the Fifth Circuit did not consider, because the government chose not to argue this issue on appeal.

In Gonzales v. Raich (2005), the Supreme Court held that Congress' power to "regulate commerce… among the several states" gives it the authority to forbid the possession and distribution of medical marijuana that had never crossed state lines or even been sold in any market within a state. I believe Raich is one of the Supreme Court's worst-ever federalism decisions. I laid out the reasons why in a 2006 article written soon after the ruling came down. But the Supreme Court doesn't seem inclined to overrule Raich, and indeed refused to hear a case that offered a good opportunity to reconsider it, just a few months ago.

Raich held that the Commerce Clause gives Congress almost unlimited power to regulate any "economic activity" defined as any activity involving the "production, distribution, and consumption of commodities." Alcoholic beverages are pretty obviously commodities, and home distilling involves their production and distribution.

Thus, if the federal government is so inclined, it could potentially try to continue to enforce this law and - if challenged again - defend it under the Commerce Clause. When and if that happens, I hope the Supreme Court will take the opportunity to overrule or at least limit Raich. But I am not optimistic it will happen, at least not in the near future.

As the Fifth Circuit notes, there is at least one other case challenging this law, currently before the Sixth Circuit (the district court in that case had dismissed it on procedural grounds). We shall see what happens with it.

Tariffs

Thoughts on Today's Oral Argument in the Section 122 Tariff Cases

The outcome is unclear. But the judges seemed skeptical of the Trump Administration's claims that Section 122 grants them sweeping tariff powers.

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Earlier today, a three-judge panel of the US Court of International Trade (CIT) heard oral arguments in two cases challenging Donald Trump's massive new Section 122 tariffs - one filed by the Liberty Justice Center (LJC) on behalf of two small businesses harmed by the tariffs, and another filed by 24 state governments. After Trump's previous International Emergency Economic Powers Act tariffs were invalidated by the Supreme Court, in a case I helped litigate, along with LJC, Trump tried to use Section 122 of the 1974 Trade Act to impose sweeping 10% tariffs on almost all imports (administration officials say they will raise them to 15%).

Section 122 only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." As explained in an amicus brief I filed on behalf of the Cato Institute and myself, and another filed by numerous prominent economists from across the political spectrum, these problems can only occur in a fixed-exchange rate regime of the kind that existed prior to the collapse of the Bretton Woods system in 1973.

In today's oral argument, the three judges asked tough questions of both sides, and I am not sure what the outcome is going to be. But several of the issues raised by the judges are potentially devastating for the Trump Administration.

First, in response to questions from Judge Timothy Stanceu, Trump Justice Department lawyer  Brett Shumate repeatedly admitted he cannot say what the balance of payment deficit is right now. He could not even give an estimate. If the Administration does not know what the deficit is, then they have no proof that it is "large and serious," as required to use Section 122. Second, at least two of the judges suggested that the government's theory of Section 122  "proves too much" - meaning that under their interpretation of Section 122, the president can invoke Section 122 virtually any time he wants, because there will always be "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits." If so, the administration has to lose. As explained in our amicus brief, such a claim to virtually unlimited authority to impose tariffs under Section 122 (subject only to the 15% limit) runs afoul of the major questions doctrine (which requires Congress to speak clearly when delegating vast powers to the executive) and the constitutional nondelegation doctrine, which limits transfer of legislative power to the executive.

At the very least, the major questions doctrine requires a decision against the executive when the latter claims a sweeping delegation of power and there is substantial ambiguity about whether the text of the law actually grants that much authority. And, if there is one thing that today's nearly three-hour long oral argument proved, it's that it's far from clear that Section 122 grants the administration the power it claims. This is another example of the executive claiming that emergency powers intended to be used only in extreme situations are a blank check the President can invoke anytime he wants.

These problems are exacerbated by the Administration's repeated claims in oral argument that courts are not allowed to review the President's claims that the requisite "fundamental international payments problems" and "large and serious United States balance-of-payments deficits" actually exist. If all the President has to do to invoke Section 122 is just claim these things exist, whether or not they actually do, then there is virtually no effective limit on his power. For reasons explained in our brief, he could then easily get around the 150-day time limit simply by asserting that a new balance-of-payments problem exists anytime the original time limit expires.

The judges were also rightly skeptical of the government's claim that trade deficits are enough to trigger Section 122. As one put it in a question to Shumate, "[a]re you really saying that a large trade deficit alone is sufficient?… I don't think it is, and I think Congress didn't think it is."

Shumate also erred in claiming that President Richard Nixon's 1971 tariffs, which likely helped influence the development of Section 122, were enacted in response to a trade deficit. As Phil Magness of the Independent Institute points out, the US actually had a trade surplus when those tariffs were imposed. Ironically, in the earlier IEEPA litigation, the Trump Administration rightly noted that trade deficits "are conceptually distinct from balance-of-payments deficits," and thus that Section 122 has no "obvious application" to the President's efforts to use IEEPA in response to trade deficits.

It is true that, in its ruling against the IEEPA tariffs in the case I helped bring last year, the Court of International Trade indicated that Section 122 can be used to counter trade deficits in at least some circumstances. But, as at least two judges noted today, that statement was dictum, not necessary to the Court's holding. We made the same point in our amicus brief (pg. 8). Thus, it isn't any kind of binding precedent. Significantly, neither the Federal Circuit nor the Supreme Court relied on Section 122 when they upheld the CIT's ruling against the tariffs.

Finally, today's oral argument featured considerable discussion about the issue of why the Section 122 was enacted in 1974-75, given that the fixed exchange rate regime ended in 1973. The answer - discussed more fully in our amicus brief and that of the economists - is that many thought the fixed exchange regime might be brought back in some form. The uncertainty over that issue did not end until the Jamaica Agreement of 1976. Today we know that Section 122 was obsolete from the day it was enacted. But Congress and the President could not be sure of that at the time.

In sum, we cannot know with any certainty what the CIT will decide. And, whatever decision they make will almost certainly be appealed, perhaps even all the way to the Supreme Court. But I am hopeful both the CIT judges and appellate judges who review their decision will realize that, at the very least, Section 122 does not clearly grant Trump the sweeping tariff authority he claims. In that crucial respect, the Section 122 tariffs are a massive power grab similar to that which courts rejected in the IEEPA litigation.

Politics

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

Phony checks, a twinkling of an eye, and sparkling sports gambling.

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

New cert petition! In 2022, a SWAT team blew up IJ client Carlos Pena's print shop in Los Angeles while trying to apprehend a fugitive—and the city stuck Carlos with the tab. But the Fifth Amendment requires just compensation when the gov't intentionally damages or destroys an innocent person's property, so we're asking the Supreme Court to take up the case and remind lower courts that that's been the law for a long time. (Click here for a lovingly crafted podcast on the history.)

This week on the Short Circuit podcast: We dive into the Byzantine flowchart that is civil forfeiture, as detailed in IJ's new report Policing for Profit 4.

  1. Third Circuit (over a dissent): It's only an events contract if it's regulated in the CFTC region of D.C.; otherwise it's just sparkling sports gambling.
  2. It's not George Costanza but rather the Fourth Circuit reminding us: "We live in a society." And here that means having to follow West Virginia's compulsory schoolchildren vaccination law, even though it lacks religious exemptions. Dissent: Seems like the Free Exercise Clause should require a religious exemption for a student in a virtual public school when the state exempts homeschoolers.
  3. Fourth Circuit (unpublished): Forcing an elderly widow to choose between agreeing to waive all of her claims against a city whose sewer system just flooded her home and being homeless for want of funds (on account of the aforementioned sewage) just might maybe be "undue influence" that voids the contract. To a jury with you! Dissent: A contract where one party had more bargaining power than the other isn't "undue influence." It's just a contract. Read More

Climate Change

Ninth Circuit Dismisses Kids Climate Case Against Discounting in Cost-Benefit Analysis

The kids climate cases continue to have standing problems in federal court.

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Today the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the G. B. v. U.S. EPA kids climate suit. The court seemingly had no trouble resolving this case, as it was only argued on March 5.

In this suit the plaintiffs argued, among other things, that the practice of discounting in assessing the threat of climate change is unconstitutional as it discriminates against younger people and future generations. The court did not reach the substance of this claim, concluding the plaintiffs lacked standing. Specifically, the panel found that the plaintiffs could not satisfy any of standing's three elements.

Of note, the Ninth Circuit dismissed the case without leave to amend the complaint. While the plaintiffs are likely to seek further review, such as through a petition for rehearing en banc or a petition for certiorari, this should effectively end this case

Judge Milan Smith wrote for the panel, joined by Judges Nelson and Gould. His opinion for the panel begins:

Plaintiffs-Appellants are eighteen minors who sue the U.S. Environmental Protection Agency (EPA) and other federal entities and officials (collectively, the Government) to challenge an economic tool that the EPA sometimes consults in its rulemaking process. Plaintiffs allege that the Government has a policy and practice of promulgating rules regulating greenhouse gas (GHG) emissions in reliance on cost-benefit analyses that "discount" the value of future costs and benefits. Discounting allows agencies like the EPA to translate the future value of money into present-day value, so they can compute the projected effects of a proposed regulation over time. Rooted in the "time value of money," discounting seeks to account for the economic observation that a dollar today is generally more valuable than a dollar tomorrow.

According to Plaintiffs, the EPA's use of discounting discriminates against children like them in violation of their constitutional rights because it favors present-day consumption over future consumption, which, Plaintiffs say, advantages adults at the expense of minors. Plaintiffs further allege that GHG regulations predicated on discounted future costs and benefits harm the environment because they allow greater GHG emissions (when compared against hypothetical regulations lacking this predicate), which in turn leads to increased atmospheric temperatures and extreme weather events, ultimately causing Plaintiffs to suffer a litany of downstream harms, such as damage to their homes, respiratory ailments, and anxiety over climate change.

The district court held that Plaintiffs lacked standing to pursue these claims. Rather than satisfying the familiar requirements of injury, causation, and redressability, the district court determined that Plaintiffs' lawsuit stumbled on all three. In particular, the court concluded that Plaintiffs' discrimination theory did not assert a cognizable injury-infact; that Plaintiffs' alleged environmental injuries are not fairly traceable to the Government's use of discounting; and that Plaintiffs' request for declaratory relief is unlikely to redress their asserted harms. Because of these deficiencies, the district court declined to grant Plaintiffs a third opportunity to plead their claims. We agree with the district court and now affirm.

A different panel of the Ninth Circuit (Owens, Van Dyke, and Sung) will hear oral argument in yet another kids climate case, Trump v. Lighthiser, on Monday.

Free Speech

Allegations of Conspiracy Between Univ. of S. Florida and Jewish Groups, Brought by Students for Democratic Society Chapter, Rejected

"In essence, the plaintiffs argue that every time a Jew or Jewish organization contributes to (in this instance) a public university and that university, acting under established policy, disciplines a student who advocates for, in this instance, 'particularly Palestinian" policies, the simultaneous presence of the contribution and the discipline creates a plausible inference of a conspiracy between the contributor and the university to punish the "particularly Palestinian' advocate."

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Yesterday's opinion by Judge Steven Merryday (M.D. Fla.) in Tampa Bay Students for a Democratic Society rejects various First Amendment claims stemming from the group's expulsion by the University, largely for the reasons given in a decision I posted about in January. But it adds the following, responding to the plaintiffs' conspiracy claims:

The plaintiffs allege in the conspiracy claim (and without factual support) (1) that each defendant acted "outside the course and scope of … employment," (2) that "[e]ach individual defendant knew or should have known that their actions were in violation of Plaintiffs' constitutional rights," and "[i]n the alternative" (3) that "each Defendant acted with callous or reckless indifference [to] the Plaintiffs' rights." … In support of their conspiracy claim (or, absent sufficiently particularized facts, their conspiracy theory), the plaintiffs allege:

On May 5, 2024, the Tampa Jewish Community Centers & Federation (JCC) published a letter commending the USF administration for its zero-tolerance approach to Palestinian and allied student organizing against Israel's actions in Gaza since October 2023, and thanking [President] Law for meeting with them on multiple occasions and "work[ing]" with them to address "anti-Israel activity on campus" by what it called "anti-Israel students and agitators."

The JCC stated that the USF administration met with the Tampa Jewish Community Relations Council (JCRC) on multiple occasions since October 7, 2023, had been in 'ongoing contact' (outside the sunshine) with 'several key stakeholder groups,' had met with the Deputy Consul General of Israel for Florida, had watched a 42-minute propaganda film about Hamas, and had been paying for around-the-clock police presence at … Hillel [another Jewish Organization].

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Justice Sotomayor Opens Up About Her Colleagues

She blames her colleagues for the emergency docket situation, and faults Justice Kavanaugh for not knowing people who earn an hourly wage.

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Justice Sotomayor is on a speaking tour. In a series of public remarks, she has offered some striking comments about her colleagues.

On Wednesday, she spoke in Lawrence, Kansas about Justice Kavanaugh's concurrence in Noem v. Vasquez Perdomo.

"I had a colleague in that case who wrote, you know, these are only temporary stops," Sotomayor said, referencing a concurrence written by Justice Brett Kavanaugh, during an event Tuesday hosted by the University of Kansas School of Law. "This is from a man whose parents were professionals. And probably doesn't really know any person who works by the hour." . . .

"Those hours that they took you away, nobody's paying that person," she said. "And that makes a difference between a meal for him and his kids that night and maybe just cold supper." . . .

Why on earth would she drag Justice Kavanaugh's parents into this? President Trump was recently castigated for saying that Justices Gorsuch's and Barrett's families should be ashamed of them. Here, Justice Sotomayor is shaming Justice Kavanaugh because his parents were "professionals." Has Justice Sotomayor ever googled "Martha Kavanaugh"? Mrs. Kavanaugh taught history at a public school. I suppose being a teacher is a "professional." Both of Justice Kavanaugh's parents attended law school while raising their son. That should be admirable, right? But Justice Sotomayor just assumes they have white privilege.

As for the claim that Justice Kavanaugh "doesn't really know any person who works by the hour," that claim is demonstrably false. Many of the employees at the Supreme Court earn an hourly wage. Does Kavanaugh know none of them? We know from the confirmation process that at one of his high school friends worked at a grocery store. Moreover, Justice Kavanaugh has long volunteered to hand out meals to homeless people in the District of Columbia. These individuals likely earn an hourly wage, if that. But why make this claim at all? This was certainly on Justice Sotomayor's mind for some time, and she felt compelled to say it aloud.

Sotomayor continued:

"Life experiences teach you to think more broadly and to see things others may not," Sotomayor said. "And when I have a moment where I can express that on behalf of people who have no other voice, then I'm being given a very rare privilege."

This comment about "life experiences" harkens back to her "Wise Latina" speech. I would encourage you to read Ed Whelan's recent Confirmation Tales post on the topic. Sotomayor gave this speech many times, and certainly believes it. I suppose a "Wise Latina," with the richness of her experiences, gains insights on the meaning of the Fourth Amendment that the son of two white lawyers lacks.

Justice Kavanaugh's parents routinely attend Court sessions. I hope Justice Sotomayor apologizes for this remark.

Why would Justice Sotomayor say something like this to publicly shame her colleague? The answer, I think, would be revealed during remarks on Thursday at the University of Alabama.

"I dare say that with virtually all of them, I certainly have a civil relationship. And with many of them, I think I dare say that I have a friendship,"

Virtually? That means less than all. There are apparently some Justices that she does not have a "civil relationship" with. There are only eight other Justices. How many is "virtually all"? Seven? Six? She is friends with many. That would seem to be a majority, so perhaps five? So she is friends with five, and has a civil relationship with six or seven? Is that where are? The fact that Justice Sotomayor is taking public shots at Justice Kavanaugh suggests their relationship is not on the "sunrise side of the mountain."

Who else doesn't make the cut? I think back to the kerfuffle from 2022 when Justice Gorsuch refused to wear a mask and Justice Sotomayor was apparently troubled. Gorsuch and Sotomayor issued a joint statement saying "While we may sometimes disagree about the law, we are warm colleagues and friends." Is that no longer true? Are they no longer friends? With the benefit of hindsight, that statement seems as sincere as hostages reading a script with a gun pointed to their head.

Justice Sotomayor also blamed her conservative colleagues for the shadow docket emergency:

The Supreme Court has itself to blame for the flood of emergency appeals it's now receiving, Justice Sonia Sotomayor said Thursday.

"We've done it to ourselves," Sotomayor said during an appearance at the University of Alabama Law School. "The newspapers are filled with reports about how many emergency motions we are receiving. It's unprecedented in the court's history."

Is Justice Sotomayor okay? I follow the Supreme Court very closely. Too closely, maybe. But this level of obsession allows me to notice when things change. And my spider senses are tingling with Justice Sotomayor. Something seems very off this term, much more than usual. There was a recent red flag during oral argument in Trump v. Barbara.

Justice Sotomayor asked Cecilia Wang, counsel for the ACLU, about an apparently non-existent case:

JUSTICE SOTOMAYOR: Ms. Wang, on the earlier answer you gave to Justice Gorsuch on the temporary sojourners' cases, those were distinct cases, correct, where the parents had come to the U.S. and didn't want to give citizenship to their kids, took them out immediately, correct?

MS. WANG: I'm sorry, Justice Sotomayor, I'm not sure which cases you're referring to.

JUSTICE SOTOMAYOR: All right. I'll --I'll --that, we can look it up.

And in at least three recent cases, Justice Sotomayor forgot her spot during the round-robin questioning and jumped in when it wasn't her turn: Watson v. RNC, Enbridge Energy v. Nessel, and Wolford v. Lopez.

I suspect at some point, people will look at Justice Sotomayor, who did not step down during the Biden Administration, the same way that people look at Justice Ginsburg, who did not step down during the Obama Administration.

Birthright Citizenship

Did the Solicitor General Misrepresent Flournoy Article in Birthright Citizenship Oral Argument

It is often useful to consult the original source.

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One of the Solicitor General's primary claims in the Trump v. Barbara oral argument was that the Trump Administration's position on birthright citizenship aligns with the consensus of commentators in the late 19th and early 20th centuries, the Supreme Court's decision in Wong Kim Ark notwithstanding. Setting aside whether post-ratification commentary is a reliable guide to the original public meaning of a constitutional provision--particularly where, as here, many opponents of the Fourteenth Amendment sought to narrow the scope of its guarantees--many scholars (and amicus briefs) contest the SG's claim.

One point of contention concerns the opinions of Richard W. Flournoy, Jr., an attorney in the State Department who wrote several articles related to citizenship, including "Dual Nationality and Election," 30 Yale Law Journal 545 (1921).

Although the government did not cite Flournoy's article in its opening brief, the SG did mention it at argument. In response to a question from Justice Kagan, the SG said:

I disagree with the way you've characterized the understanding of Wong Kim Ark. And I would point to something that's emphasized in their amici's briefs, which is, in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a Law Review article in 1921 where he says: I think that children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that.

And he admits that there's an array of authorities that go against him. He talks about careful and reliable, high authorities And that's referring to the consensus that we point out in pages 26 to 28 of our brief, where you've got 12 treatises from 1881 to 1922 that all say --including for decades after Wong Kim Ark, that say children of temporary sojourners are not included. What happens between 1921 and the 1930s? Well, Mr. Flournoy became a senior State Department official, and he adopted that as the policy of the Roosevelt administration. So their argument is basically saying there wasn't this consensus going back to 1898. The consensus, as their own author admits, goes entirely in the opposite direction for 50 years, right? For 50 years, from the framing of the clause, through the 1920s, maybe 60 years, the general understanding when it comes to what's at issue here and was not at issue in Wong Kim Ark is that children of temporary visitors do not become citizens under the clause.

The SG makes an interesting (if unintentional) concession here: The federal government adopted the conventional view of birthright citizenship in the 1930s, so this was the prevailing understanding when Congress codified the current statutory rule concerning birthright citizenship. It was how federal law was understood and enforced and (as the SG's reply brief notes) the 1940 statute was not understood to make any change to the underlying law. (Indeed, the SG's reply brief cites Flournoy's 1940 testimony to Congress on this point.) This supports my claim that, whatever one thinks of the original public meaning of the 14th Amendment's citizenship clause, the established public meaning of the relevant statutory provisions at the time of their enactment was the conventional understanding.

But what of the SG's specific claims about what Flournoy wrote in 1921? Some scholars, such as Evan Bernick, accuse the SG of misrepresenting Flournoy's article and what it said about Wong Kim Ark.

The surest way to evaluate this claim is to go to the source. So here (as best as I can tell) is the relevant portion of Flournoy's 1921 article (at 552-53).

Notwithstanding the decisions of the courts mentioned and others to the same effect, the law of this country concerning citizenship by birth has been misstated by a number of writers on international law, who have assumed that, in order that a person born in the United States of alien parents may have American citizenship, his parents must have been domiciled in this country at the time of his birth. This error seems to have originated with Wharton, who seems to have gone so far as to hold that persons born in the United States of alien parents were not citizens of the United States, under the provisions of the Civil Rights Act, since their parents were "subject to a foreign power." He seems to have fallen into the error of construing these words as equivalent to "subjects of a foreign power." He cites several declarations of Secretaries of State in support of his opinion, but these declarations are not in accord with the decisions of the courts. Mr. Hannis Taylor, relying partly upon Wharton, expresses his opinion that "children born in the United States to foreigners here on transient "residence are not citizens, because by the law of nations they were not "at the time of their birth 'subject to the jurisdiction,"' and Wharton's opinion has also been followed by such careful and reliable authors as Hall and Westlake. I should hesitate to question the view expressed by such high authorities were it not for the fact that it is clearly contrary to the decisions of our courts. It is true that the decisions in Re Look Tin Sing and United States v. Wong Kim Ark did not directly decide the precise point that persons born in the United States of aliens who are mere sojourners or transients are citizens of this country, since in each of these cases the parents were domiciled in the United States, so that it was not at issue. However, both of those decisions relied to a considerable extent upon the decision in Lynch v. Clarke, in which the person concerned, who was declared to be a native citizen of the United States, was born in this country of alien parents who were mere sojourners. What is more important, all of these decisions were based upon the theory that the law of citizenship of the United States was taken from the common law of England, and the latter makes no distinction between persons born in the country of alien sojourners and those born of domiciled aliens.

"But," one may ask, "if a Chinese merchant and his wife are returning" from Europe to China via the United States, and a child is born to "the woman in San Francisco the day before they sail, is such child, by "the mere accident of having first seen the light in this country, a citizen "of the United States?" Absurd as it may seem, the child is indeed a citizen of the United States under the law of this country, although it is also a Chinese citizen under the law of China. Although it is unfortunate that such cases are possible, there is, on the other hand, much practical advantage in a system in which mere proof of birth in the United States is sufficient proof of citizenship. This is remarked upon by Judge Sandford in the opinion [Lynch v. Clarke] to which I have called attention.

It is certainly true that Flournoy acknowledges the narrowness of Wong Kim Ark's holding and that some treatise writers adopted a different view from his, but I think that is as far as it goes. He hardly concedes a "consensus" on the subject and embraces the dominant understanding of Wong Kim Ark as grounded in the common law rule articulated in Lynch v. Clarke. At the very least, it appears that the SG misspoke.

If there is another portion of the Flournoy article relevant to this point, I am happy to post that as well.

Free Speech

"There Is No Constitutional Right to Possess a Cell Phone in Class"

"Furthermore, to temporarily deprive a student of his cell phone during a class or a test and return it to them after the class or test is completed (or even at the conclusion of the school day) is not a constitutional violation."

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Sound reasoning, I think, from Judge Andrew Hanen (S.D. Tex.) Tuesday in Brown v. Splendora Indep. School Dist. Plus a bit more on other topics, which should offer a flavor of the set of complaints that plaintiff brought:

"On or about March 12, 2025, during a class testing period, Teacher [Name Not Specified in Allegations] removed RB from the classroom and referred him for suspension." (emphasis added). The reason he was removed, as specified in Plaintiff's Amended Complaint, was that RB refused to sit in his assigned seat, was being difficult, and was talking across the room while others were taking the test. RB claimed at the time that he perceived his being sent to the office to be "racial injustice." To make matters worse, RB then called the teacher a "racist." Brown admits in his Amended Complaint that RB was mistaken in this notion.

Brown claims that refusal to sit in one's assigned seat, being difficult, and talking during a test is not enumerated in the Student Code of Conduct and therefore cannot be the basis for discipline. To reach this conclusion, Brown again employs a very selective reading of the Code of Conduct.

The Code of Conduct requires students to demonstrate courtesy. Talking across the classroom, being difficult, and calling the teacher a "racist" while others are trying to take a test certainly violates that tenant.

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Justice John Marshall Harlan's Lecture Notes On Wong Kim Ark

An excerpt from my 2013 co-authored article on Harlan's constitutional law lectures.

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Last week, while listening to the oral argument in Trump v. Barbara, I was pleasantly surprised to hear Justice Gorsuch ask the Solicitor General and Cecilia Wang, counsel for the ACLU, about Justice Harlan's constitutional law lectures concerning Wong Kim Ark. Back in 2013, Brian Frye, Michael McCloskey, and I transcribed and published all of Harlan's lecture. This was done the old-fashioned way, without the benefit of AI. We went to the Rare Books room at the Library of Congress, and photographed more than 500 pages of archived materials. We also published an article in the George Washington Law Review analyzing the lecture notes.

Given the recent attention to Justice Harlan, I thought it would be helpful to reproduce both our discussion of Harlan's lecture on Wong Kim Ark, as well as the full transcript from the classes from before and after Wong Kim Ark was decided. (Yes, Harlan talked about the case while it was pending, and previewed his vote). Those excerpts appear in this post.

The ACLU and Justice Gorsuch accurately quoted the lecture notes, but I think you need to read the full context to understand Harlan's position. I will have more to say about Harlan's view in separate writing. Here, I just want to lay out the background.

Josh Blackman, Brian Frye and Michael McCloskey, John Marshall Harlan: Professor of Law, 81 George Washington Law Review 1063 (2013).

Brian Frye, Josh Blackman, and Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, 81 George Washington Law Review Arguendo 12 (2013).

C. American Citizenship and Equal Protection

One of Harlan's most passionate lectures was his discussion of United States v. Wong Kim Ark329 on March 19, 1898.330 In Wong Kim Ark, the Supreme Court considered whether birth in the United States was sufficient to grant United States citizenship to a person of Chinese descent.331 The Court, in a 6–2 decision by Justice Gray, held that Wong Kim Ark, who was born in the United States to Chinese citizens, acquired American citizenship at birth by the principle of jus soli.332 Chief Justice Fuller, joined by Justice Harlan, dissented, arguing for the principle of jus sanguinis, under which a child inherits citizenship from his or her father, regardless of birthplace.333

Wong Kim Ark was argued on March 5 and 8, 1897.334 When Harlan discussed it in class on March 19, 1898, he expressed views closely reflecting the dissent he eventually joined.335 Harlan argued that Chinese-Americans could not be assimilated into the American populace, and thus were not entitled to birthright citizenship under the Fourteenth Amendment.336 The case would be decided nine days later on March 28, 1898, after which Harlan explained how he reconciled his views with those of the majority.337 This discussion illuminates Harlan's chimerical views on race, and juxtaposes his enlightened dissents in Plessy v. Ferguson338 and the Civil Rights Cases339 with his xenophobic views in Wong Kim Ark.

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Birthright Citizenship

The Birthright Citizenship Question that Stumped the Solicitor General

It was surprising that the Solicitor General did not appear to have thought much about the extent of Congress' legislative power under Section 5.

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In reviewing the Supreme Court oral argument in Trump v. Barbara, in which the justices considered the lawfulness of President Trump's anti-birthright-citizenship Executive Order, I was struck by an exchange in which a fairly obvious question seemed to catch the SG off guard.

Justice Kavanaugh asked the Solicitor General about the extent to which Congress might have authority to modify the contours of birthright citizenship, and the SG's response suggested he had never pondered this question before.  Here is the transcript of exchange:

JUSTICE KAVANAUGH: Of what relevance, if any, do you think Section 5 of the Fourteenth Amendment has here that gives Congress the power to enforce the article, the Fourteenth Amendment, by appropriate  legislation? Does that give Congress room here, or do you not think so?

GENERAL SAUER: I --I do think that a ruling in our favor would leave room for Congress. I --I don't think you have to rely on Section 5. I think that Congress has its own inherent power to grant citizenship by statute. So, if the Court were to rule in our favor for the classes of individuals that they say should be covered, Congress has the latitude to do that.

JUSTICE KAVANAUGH: How much room do you think Section 5 gives, if any --and it may not be any --Congress to interpret the phrase "subject to the jurisdiction thereof" or to define that? Does it --is that --is that relevant at all?

GENERAL SAUER: It's a great question, and I'm thinking about it for the first time. I assume it would be governed by the congruence and proportionality test from this Court's case law. How that would apply here, I don't know. And I don't think it's presented because our contention is that the statute means exactly the same thing. If anything is congruent and proportional, it's that. And I think the Court held that in United States against Georgia.

I understand that the SG is trying to defend the Executive Order, and it is quite unlikely that Congress is going to enact legislation on birthright citizenship any time soon, but I was nonetheless quite struck to hear the SG confess he had not previously considered the extent to which Congress might have the power to define who is "subject to the jurisdiction" of the United States for purposes of birthright citizenship, as this would seem to be quite relevant to the legal issues in play.

I previously blogged on the oral argument in Barbara here.

More

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1

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