5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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How European Libertarians Differ From American Ones
As I saw at a recent conference, the two groups are similar in many ways. But there are a few notable differences.
On April 24-26, I attended LibertyCon Europe 2026, the major annual gathering of European libertarian students and academics (held this year in Madrid). I was invited to give two talks, and therefore came to this event for the first time since 2014. I spoke to numerous students, academics, and activists who attended the conference and got a better sense of where European libertarians (or "classical liberals," as some prefer to call themselves) stand at this crucial moment in history. It was interesting to observe similarities and differences with their American counterparts.
Not surprisingly, there is a large overlap between the two groups' views and priorities. A high proportion of what I saw and heard at LibertyCon Europe differed little from what I would expect to see at a comparable US event. For example, libertarians on both sides of the Atlantic are deeply concerned about excessive government spending and regulation, growing efforts to impose restrictions on access to various websites (often under the pretext of protecting children), protectionist restrictions on international trade, and more. American libertarians have greatly influenced their European counterparts, and vice versa. As the great Austrian libertarian economist F.A. Hayek put it, "[t]he growth of ideas is an international process."
There are, however, several noteworthy differences. First and foremost, it is notable that European libertarians have an almost unanimously negative view of Donald Trump and his administration. Many, probably most, American libertarians are similarly negative. But there is a significant faction that is "anti-anti Trump" (holding that Trump is flawed, but still preferable to his opponents, or at least no worse than them), and a smaller but vocal group that is actively pro-Trump.
Among European libertarians these latter two camps are almost completely absent. At the conference, several European participants asked me whether I thought Trump was the worst-ever US president. I answered that he is working hard to achieve that "distinction," but has not so far surpassed Woodrow Wilson and Andrew Johnson, and perhaps 2-3 others. Regardless of the answer, the ubiquity of the question was notable.
Perhaps this is not entirely surprising. Trump promotes an American version of nationalist ideology. For obvious reasons, non-Americans are inherently less likely to be sympathetic to American nationalism. But the European libertarians I met also have very negative views of the right-wing nationalist parties in their own countries, such as the AfD in Germany, the National Rally in France (formerly the National Front), and others. Hungarians at the event were thrilled by the recent crushing electoral defeat of authoritarian nationalist Prime Minister Viktor Orban. Others there were happy to see Orban go, as well. Orban's regime exemplified many of the evils of nationalism, and was beloved by "national conservatives" and "postliberals" in the US, and around Europe.
On average, European libertarians seem much more attuned to the dangers of nationalism than American ones are. One of the talks I gave at the conference was on how nationalism is now the greatest threat to economic liberty in most of the world, taking the role previously held by socialism. Afterwards, almost everyone who spoke to me about it expressed substantial agreement (with the exception of one Scandinavian academic). The same presentation would have attracted considerably greater dissent among US libertarians.
I don't fully understand the reasons for this difference between US and European libertarians. But one cause may be Europe's awful history with nationalism, which makes libertarians there more sensitive to its perils. Those dangers are indeed very great, as Alex Nowrasteh and I explained in our 2024 article, "The Case Against Nationalism."
Another striking European-American difference I noted at the conference is that European libertarians overwhelmingly support Ukraine against Russia, and generally also support Western aid to Ukraine. By contrast, most (though by no means all) American libertarians oppose such assistance on quasi-isolationist grounds. Some also endorse foreign policy "realism," which holds there is little or no difference between the foreign policies of difference regime types (e.g. - that liberal democracies' foreign policies are little different from those of dictatorships). Such views are rare among European libertarians. One European participant at the conference argued to me that American libertarians' isolationist approach to security policy is not rooted in any general element of libertarian thought, but is rather a product of the America's unique geography - separated from other powerful nations by two oceans.
As in the case of Trump and nationalism, I largely agree with the Europeans on this one. In previous writings, I have made the case for Western support for Ukraine, and also argued against libertarian neo-isolationism generally.
Some of the European-American divergence over Ukraine is explicable by the particular history of individual nations. Many participants in the LibertyCon Europe conference come from Eastern European countries like Poland, Hungary, and the Czech Republic, which have a history of being occupied and oppressed by the Soviet Union, the Russian Empire, or both. That naturally contributes to their hostility to Russian aggression today. But it is notable that most Western Europeans at the conference held views on this issue that differed little from their eastern counterparts.
A third key difference is a divergence regarding constitutional questions. Many American libertarians (myself included) devote extensive time and effort to constitutional questions, and several American libertarian groups have done much to advance their causes through constitutional litigation; the Institute for Justice and the Pacific Legal Foundation are notable examples. Such possibilities seem largely absent from the radar screen of European libertarians.
Indeed, almost the only presentation at the conference that focused extensively on constitutional litigation was my own talk on the US Supreme Court's recent ruling striking down Trump's tariffs in a case I helped litigate. As I noted in the final portion of my talk, I think European libertarians are overlooking potentially valuable opportunities. Both the European Convention on Human Rights and the national constitutions of multiple individual countries contain potentially useful provisions protecting property rights and economic liberties, that libertarians could potentially make better use of. They could also potentially make use of federalism and separation of powers elements of some of the relevant constitutions. Various economic interest groups have sometimes made effective use of pro-market strategic litigation in Europe. But not so libertarians. Rasheed Griffith, A European-based Mercatus Center scholar, made similar points in his talk on a panel on economic regulation, also urging Europeans to make greater use of constitutional litigation.
Obviously, Europeans shouldn't necessarily use the same types of arguments as those deployed in US litigation. But they should not neglect opportunities to use constitutional litigation to promote liberty. Litigation usually cannot succeed entirely on its own. Successful reform movements generally combine it with political action. But it is often a valuable tool, nonetheless.While we would do well to learn from the Europeans on the first two points of contrast covered here, the reverse is true on this one.
The above is far from a complete account of what I saw and heard at the conference, nor is it a complete analysis of similarities and differences between American and European libertarians. But the three points of contrast I cover seemed particularly notable.
The last time I spoke at a LibertyCon Europe conference - back in 2014 - I saw a talk by the great Swedish libertarian Johan Norberg (now a colleague of mine at the Cato Institute). He said that Europe is both the greatest continent and the worst one. It's the greatest because it gave us Enlightenment liberalism, the set of ideas that brought unparalleled freedom and prosperity to so much of the world, including America. It's the worst because it also gave us socialism and fascism, the causes of unparalleled oppression, poverty, and mass murder. Fascism, of course, is just a particularly egregious variant of nationalism, an ideology that also originated in Europe.
Hopefully, the good that Europe gave the world can ultimately overcome the evil. Libertarians on both sides of the Atlantic should work to help make that happen.
NOTE: I use the word "libertarian" here. But, as noted above, some adherents of the relevant ideology on both sides of the Atlantic prefer "classical liberal." I think the two terms are largely equivalent and prefer "libertarian" for stylistic reasons. But there are many who disagree.
Court Upholds Ban on Military Retirement Home Residents' Wearing Political Clothing in Public Spaces
The Court has in the past upheld restrictions on political activity (such as candidate speeches) on military bases, see Greer v. Spock (1976), and lower courts have upheld restrictions on speech by outsiders on various kinds of government property, including military bases. But when may the government restrict speech by people who actually live on government property—military bases or otherwise—and who aren't active duty military or even other government employees?
The issue has come up fairly rarely, but at least some cases have recognized that residents of various kinds of public housing retain broad constitutional rights on that property. Resident Action Council v. Seattle Housing Authority (Wash. 2008) is one example; that case struck down a "[public] housing regulation prohibiting the posting of signs on the exterior of resident apartment doors" by the residents. See also, e.g., Walker v. Georgetown Housing Authority (Mass. 1997). But in Friday's Fuselier v. RisCassi, Chief Judge Halil Suleyman Ozerden (S.D. Miss.) upheld a limit on wearing political clothing in public spaces at a military retirement home. An excerpt:
Plaintiff … is a Vietnam War veteran and long-term resident of the Armed Forces Retirement Home—Gulfport, a gated, guarded, all-inclusive residential retirement home located on the shores of the Gulf of America …. [T]he "administration of the Retirement Home" is "under the control and administration of the Secretary of Defense" …
The AFRH-G … prescribes certain rules for its residents, such as requiring them to complete a "leave form" if they intend to leave campus for more than twenty-four hours, and it prohibits drinking alcohol (except in designated areas) and possessing a firearm on campus. It also prohibits conduct and dress—in common areas—that it deems "inappropriate." One class of apparel deemed "inappropriate" is "political" apparel:
- Conduct: Residents are expected to conduct themselves in a manner that will promote harmony, safety, security and consideration of others. Negative behavior, such as using racial slurs, engaging in confrontations, swearing, and damaging the property of other Residents will not be tolerated … Signs and apparel of racial, sexual, political, or ethnic slogans are not permitted ….
- Dress: In public spaces, Residents are expected to wear clothing that is clean, neat, serviceable, and conducive to adult living. Apparel with racial, sexual, political, or ethnic slogans is considered inappropriate dress at the AFRH-G ….
{[W]eekly bulletins issued in June and July 2023 limited the political apparel restriction to "current" political candidates.}
As a "passionate supporter of President [Donald] Trump and other Republican political candidates and officials," Fuselier wants to show his support by donning apparel and displaying signs with political slogans in campus common areas. For example, he wishes to wear apparel with the slogans "Trump 2024 Save America Again!" and "Let's Go Brandon," and adorn his orthopedic walker with slogans like "Vote Republican Vote MAGA" and "Tate Reeves for Governor." …
[After AFRH refused to let him wear and display political slogans, in] late June 2023, Fuselier "affixed two printed signs to his orthopedic walker while in the common areas" of the retirement home. One sign stated "2024 – Make Us Great Again" and the other stated "Let's Go To Brandon MS." According to Plaintiff, the Resident Officer "ordered him to remove the signs" and informed him that refusing to comply could result in an "administrative hearing," and possible eviction.
The court concluded that the government property was a "limited public forum" exists "where a government has reserved a forum for certain groups or for the discussion of certain topics." On such property, restrictions are constitutional if they're viewpoint-neutral and reasonable, and the court said these restrictions qualified. Some excerpts:
"Multi-Figure Verdicts"
I am certain that this claim is accurate.
Spotted on a lawyer's web site:
To be fair, the lawyer was apparently one of the lawyers on what would commonly be called a low eight-figure settlement ($11M), and the lawyer's site mentions a couple of similarly sized verdicts, one later on the same page and one or another page. It thus seems more like a funny glitch than a telling error. On the other hand, the lawyer has recently been sanctioned for AI hallucinations in a filing written by an associate but also signed by the lawyer.
Court Finds AI Hallucinations in Filing by Former State Senate Candidate
From Jimenez-Fogarty v. Fogarty, decided Wednesday by Magistrate Gabriel W. Gorenstein (S.D.N.Y.); Lindsay had run for the N.Y. State Senate in 2024:
Tricia S. Lindsay, attorney for plaintiff Sai Malena Jimenez-Fogarty, responded to two motions to dismiss by filing a pair of memoranda of law that cited to numerous nonexistent cases. In response, the Court ordered Lindsay to show cause why she should not be sanctioned for her misleading filings. Upon consideration of Lindsay's response to these orders, we find that she should be sanctioned in the amount of $2,500.00 ….
[T]wo briefs were signed by Lindsay, and each contained a number of fabricated citations. When we say "fabricated," we do not mean citations that arguably contain typographical errors—for example, Lindsay's citations to cases that exist and support the propositions for which they were cited but are not located in the volume or at the page of the reporter (or database identifier) given. Similarly, we exclude any otherwise correct citations that give the wrong case name. We also exclude those instances where the cited case covers the same topic as the proposition for which it is cited but where the case's holding is completely mischaracterized, although such a citation is itself grossly misleading and perhaps deserving of sanctions.
Instead, we consider only citations to cases that cannot be located at all by name—or that were not located where Lindsay said they were and have nothing to do with the propositions for which they were cited—thus showing that the citations were completely made up. The following are descriptions of some of the fabricated citations [listing seven items -EV] ….
Lindsay's response to being alerted to the fabricated citations did not follow the typical pattern in cases where courts have called upon attorneys to explain the presence of fabricated citations in their papers. The Court's first OSC [Order to Show Cause] specifically ordered Lindsay to provide "a complete and detailed description of the process of the drafting of the two memoranda of law." While most attorneys provide such an explanation, which often involves an admission of reliance on artificial intelligence ("AI") platforms, Lindsay's brief sworn statement in response offers only airy generalities and conclusory statements. Her response contains no coherent explanation for how the two memoranda of law came to contain the fabricated citations. The most basic questions—most obviously: what was the source of the fabricated citations?—are never answered.
Today in Supreme Court History: May 2, 1927
5/2/1927: Buck v. Bell decided.
Open Thread
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5th Circuit Panel Blocks 2023 Mifepristone Telemedicine Approval
This case will go to the Supreme Court very quickly.
It has been a very busy 48 hours for Louisiana. On Wednesday, the Supreme Court decided Callais. The following day, the Governor announced he would suspend the upcoming primary elections to allow the legislature to redistrict. There is also litigation before the Supreme Court about the issuance of the judgment in Callais. Earlier today, the Governor was sued to enjoin the cancellation of the election.
And just a few moments ago, the Fifth Circuit panel granted a stay in Louisiana's challenge to the mifepristone telemedicine approval from 2023. What, you thought the case was over after Alliance for Hippocratic Medicine? You have not been following the Fifth Circuit closely enough.
For now, I will just paste the introduction of Judge Kyle Duncan's panel opinion.
In Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), the Supreme Court returned the regulation of abortion to the states. In response, the Biden Administration directed federal agencies to "expand access to . . . medication abortion." Exec. Order No. 14076, 87 Fed. Reg. 42053 (July 8, 2022). The next year, the Food and Drug Administration (FDA) formally altered its safety guidelines for the abortion drug mifepristone. Under the new regulation, the drug could now be prescribed online and dispensed through the mail, without any need for an in-person visit to a doctor. In 2025, Louisiana challenged the new regulation in federal court under the Administrative Procedure Act (APA). It argued that FDA's justifications for remotely dispensing mifepristone were based on flawed or nonexistent data. It also documented how the new regulation had resulted in numerous illegal abortions in Louisiana and in Louisiana paying thousands in Medicaid bills for women harmed by mifepristone. Louisiana sought a stay of the regulation while the litigation proceeded. In response, FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe. But the agency resisted staying the regulation, arguing it was in the midst of a comprehensive review of mifepristone protocols. The agency, however, could not say when that review might be complete and admitted it was still collecting data. The district court agreed that Louisiana was likely to win its challenge to the mifepristone regulation and was suffering irreparable harm from it. Nonetheless, the court declined to stay the regulation based on its balancing of the equities and the public interest. Louisiana appealed to our court and sought a stay pending appeal under 5 U.S.C. § 705.
We grant the stay.
This case should get to the Supreme Court ver soon.
To be clear, this ruling would not take mifepristone off the market. But it would require people to have an in person evaluation before receiving a prescription for the abortion drug. Post-Dobbs, the number of abortions nationwide has likely increased, in large part, because of the telemedicine requirement. Doctors in blue states send these pills to Louisiana, Texas, and other red states, and are protected by state shield laws. But if there is an in-person requirement to prescribe the drug, those doctors would not be able to dispense across state lines.
The Trump Administration likely does not want this headache. The government has raised a host of standing and other procedural defenses, but has not defended the Biden decision on the merits. Let's see what SG Sauer does before the Supreme Court everyone.
First Circuit Stays Court Order Commandeering New Hampshire (Though Doesn't Rely on Anti-Commandeering Arguments)
The appellate court rightly concludes that Gordon-Darby's lawsuit had multiple legal problems.
Yesterday a panel of the U.S. Court of Appeals for the First Circuit stayed a district court injunction, pending appeal, that would have commandeered New Hampshire by requiring it to maintain a vehicle emissions inspection program to comply with the federal Clean Air Act. As I explained here and here, the court's order violated the anti-commandeering doctrine (though the state had not made much effort to make this argument).
The unsigned order (on behalf of Chief Judge Barron and Judges Aframe and Dunlap) concluded (correctly) that New Hampshire was likely to prevail on the merits, even if it did not conclude that the order violated the anti-commandeering doctrine. Rather, the court concluded that Gordon-Darby, which had sued New Hampshire in order to protect its lucrative vehicle emissions testing contract, was premature in alleging the state was "in violation of" the Clean Air Act when it sued under the law's citizen suit provision, as the state law terminating the vehicle emissions inspection program had not yet taken effect. While the relevant case law allows citizen suits for past or present violations, the district court, in effect, allowed a suit for (and entered an injunction against) wholly prospective violations.
Having concluded New Hampshire was likely to succeed on the merits, it was easy for court to further conclude that the injunction would cause irreparable injury by "forc[ing] a State to continue enforcing a program that the State's legislature has repealed." It further noted that any benefit to Gordon-Darby from the injunction was speculative, as forcing New Hampshire to continue the emission inspection program would not guarantee that Gordon-Darby would get the contract.
It is too bad the court saw no need to reach the state's commandeering or other federalism arguments, but entirely understandable. The Gordon-Darby suit was a transparent ploy to preserve a lucrative contract that the state had lawfully terminated, and like many such ploys, it was not well-grounded in the law.
Perhaps anticipating the First Circuit's order, on Wednesday the district court denied Gordon-Darby's quite audacious request to hold New Hampshire officials in contempt and award sanctions. The district court judge apparently thought better of holding state officials in contempt for failing to urge or enact laws the federal government has no authority to compel.
As a technical matter, New Hampshire's appeal remains pending, but there should be little question anymore about how this litigation will end.
The Major Questions Doctrine Constrains Presidential Power Over Elections
It limits executive power grabs in this field, as well as others.
Donald Trump has been trying to "nationalize" (his term, not mine) control over elections, claiming sweeping presidential power to control voting processes in a variety of ways. In a compelling recent post at the Election Law Blog, Richard Bernstein explains why these moves run afoul of the major questions doctrine:
Briefing has begun in the cases challenging President Trump's latest attempt to arrogate power over federal elections to the federal executive branch—EO 14399's direction that the USPS provide lists states of voters eligible to vote by mail and to block the mail-in votes of those not on the USPS lists. The Society for the Rule of Law (with me as counsel) filed an amicus brief arguing, at pages 10-14, that the major questions doctrine applies to interpretations of federal agency authority on elections issues. That brief is linked here. The lack of authority for EO 14399 is so clear that a federal court does not need to rely on the major questions doctrine in order to invalidate EO 14399. But it should, as an alternative holding….
Before a federal agency has authority to regulate a major question, a statute must provide "clear congressional authorization." West Virginia v. EPA, 597 U.S. 697, 723-24 (2022). "[M]odest words, vague terms, or subtle devices" do not suffice. Id. at 723. Under the major questions doctrine, courts "presume that Congress intends to make major policy decisions itself, not leave these decisions to agencies." Id. at 723 (quotations omitted). This reflects "both separation of powers principles and a practical understanding of legislative intent." Id. at 723-24. "[A] reasonable interpreter would not expect Congress to pawn . . . a big-time policy call . . . off to another branch." Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 641 (2026) (plurality opinion) ("Learning Resources Plurality") (cleaned up). Deciding what is a major question also reflects "constitutional structure and common sense." Id. at 639.
The major questions doctrine is especially suitable for federal agency regulations of federal election issues. That is because federal elections control who exercises federal legislative and federal executive power. To compare an election issue to Learning Resources, Congress has the power to impose tariffs, but federal elections decide who exercises that power and every other legislative and executive power, and therefore how all those powers are exercised. As James Madison explained in Federalist No. 51, "[a] dependence on the people" through elections "is, no doubt, the primary control on the government."
The Elections Clause unmistakably vests the power to decide the rules for federal elections in legislatures – first and foremost state legislatures, subject to alteration by Congress. Congress has not been shy about exercising this power…..
Allocating power to any President to make election rules would be a fundamental departure from our constitutional structure. Our federalist election structure, designed by the Elections and Electors Clauses and still upheld in federal election statutes, fosters both the reality and appearance of election integrity by decentralizing election rules and who executes them. In our nation's history, it is rare that control of either house of Congress or the Presidency is decided by a single disputed election in one state. Thus, stealing control would require a conspiracy involving officials in multiple states. Stealing such control would be easier if the unitary federal executive branch could make rules for, and exercise greater power over, federal elections in all 50 states.
I largely agree. The major questions doctrine (MQD) requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'" If the statute is ambiguous, courts must presume that Congress didn't give the executive branch the authority it claims.
Previous Supreme Court major questions decisions - most recently, the tariff case, which Bernstein cites and which I helped litigate - concerned assertions of power over substantive policy issues. These election cases concern power over procedures. Nonetheless, as Bernstein notes, control over elections is a way to leverage vast power over a range of issues (because election winners get to make a variety of policy decisions), and that control is crucial to America's system of federalism and separation of powers. Thus, when the president claims sweeping delegations of power over election procedures, the major questions doctrine applies.
And, as in the case of tariffs, the Constitution gives the president no inherent power over election procedures. Any authority he might have must be delegated by Congress exercising its Article I power to "make or alter" state regulations relating to the time, place, and manner of congressional elections.
To be sure, MQD would not apply in situations where the executive claims he has been delegated only some relatively minor power, such as authority over some minor aspect of election administration. But here, the White House is claiming far greater authority than that.
NOTE: The amicus brief Bernstein refers to was filed on behalf of the Society for the Rule of Law. the Society for the Rule of Law. I am a member of SRL's Advisory Council (an unpaid position).
Trump's Iran War Continues to Violate the Constitution - and Now Also the War Powers Act of 1973
The administration is wrong to claim that the 60-day time limit in the Act is "stops" due to the ongoing ceasefire.
In my March 5 Dispatch article on the Iran War and the Constitution, I explained why Donald Trump's initiation of the war without congressional authorization is unconstitutional. As of today, it is also in violation of the War Powers Act of 1973. Enacted in the wake of the Vietnam War, the WPA requires the president to secure congressional approval within 60 days of entering U.S. troops into "hostilities" or situations "where imminent involvement in hostilities is clearly indicated by the circumstances." The president can seek a 30 day extension without additional congressional authorization, but Trump has not done so in this case.
The sixty day deadline expires today. Therefore, Trump is now in violation of the WPA, as well as the Constitution. Yesterday, Secretary of Defense Pete Hegseth claimed that the WPA clock "stops" because of the ongoing ceasefire with Iran, curently still (tenuously) in effect. But the WPA doesn't just apply to situations where US forces are in active combat. It also applies "where imminent involvement in hostilities is clearly indicated by the circumstances." Such "imminent involvement" is indeed "clearly indicated" now. Most informed observers know the ceasefire could break down at any time. Trump himself repeatedly threatens to restart the fighting. Thus, the WPA clock is still ticking, and Trump is now in violation of that law. This violation is not as grave an issue as his violation of the Constitution. But it is significant nonetheless.
Earlier in the conflict, some defenders of the administration claimed that the WPA authorized Trump to start the war without congressional approval. In my Dispatch article, I explained why this claim is false. The WPA is a limitation on executive power, not a grant:
Many, particularly on social media, argue that Trump's actions are authorized by the War Powers Act of 1973. But the WPA is a limitation on presidential power, not a grant of it…
The purpose of this requirement is to constrain even small-scale combat deployments that might otherwise not require congressional authorization, because they fall short of being a war. Section 2(C) of the WPA makes clear that the statute does not expand presidential war initiation authority, emphasizing that "[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." None of these three preconditions exist in the current situation.
Even if the WPA did, initially, grant Trump authority to wage this war, it now no longer does.
As also discussed in my Dispatch article, I am not completely averse to the idea of waging war against Iran. Replacing the brutally oppressive anti-American government with a better one would be a great gain. But, so far, there is little evidence that The US and Israel are likely to achieve any significant gains that justify the costs. And, as noted in my earlier article, that failure is connected with the failure to secure broad congressional and public support for the conflict, which leaves the administration with little political capital to continue fighting if the going gets tough:
This limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
Sure enough, after Iran closed the Strait of Hormuz and energy prices greatly increased, Trump agreed to a ceasefire, despite getting few if any Iranian concessions relative to the prewar status quo.
War is dynamic, and it is certainly possible this one will take a different direction, or even reach a more desirable outcome. So far, however, it has achieved little of value. Certainly nothing substantial enough to justify undermining our constitutional system. Among other things, the radical Islamist regime remains in power, it retains the ability to close the Strait of Hormuz, and it can still continue its nuclear program.
In my earlier article, I explained why congressional authorization is required on originalist grounds, and addressed various pragmatic arguments against enforcing the requirement.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Smart meters, bad metaphors, and the color of state law
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More
"Gaslighting" Isn't "Abuse" for Child Custody Law Purposes
So holds an Oregon appellate court.
From Oregon Court of Appeals Judge Ramón Pagán, joined by Judges Robyn Aoyagi and Jacqueline Kamins, Wednesday in Estens v. Wells:
[In a child custody hearing, w]itnesses testified to an incident in which mother took the child on vacation to Hawaii and claimed to father that she had been bumped from her flight, requiring her to return the child late. Mother's boyfriend testified that she had not been bumped from the flight. Mother was also found to be evasive about details of the child's medical care. She denied, but then later admitted, that she had cancelled or skipped medical appointments. The parties also testified about text messages between mother and father where mother had greatly exaggerated the number of times that child had attended a particular extracurricular activity in what appeared to be an attempt to have father help pay for the activity.
In its decision, the trial court explained that one of the factors it was considering was that mother had abused father:
"Another factor that I may have skipped over is the abuse of one parent by the other. There has been no allegation of abuse. However, I find that Mother's communication with Father and the testimony amounts to a lot of gaslighting. It's a moving target, the truth with Mother's testimony has been a moving target. 'Didn't you say this?' 'Oh, yes, but I meant this.' There's six different explanations for everything. And it is not good for the child and it does constitute abuse, gaslighting is abuse. And so that is another factor that the Court is considering."
The trial court found mother not credible and father credible. The trial court thus modified sole custody to father….
Mother appealed, and the court reversed, concluding in part:
Gov. Newsom's Defamation Lawsuit Against Fox News Over "Gavin Lied About Trump's Call" Claim Can Go Forward
An excerpt from Delaware Superior Court Judge Sean Lugg's 42-page opinion yesterday in Newsom v. Fox News Network, LLC:
In the midst of civil unrest in Los Angeles, California, Governor Gavin C. Newsom spoke on the telephone with President Donald Trump. The call took place after 10:00 p.m. on the night of Friday, June 6, 2025 (Pacific Daylight Time) (after 1:00 a.m. on Saturday, June 7, 2025 (Eastern Daylight Time)). The two did not speak again before President Trump, at a Tuesday, June 10, 2025, Oval Office press conference, was asked when he last spoke with Governor Newsom; President Trump responded that he and Governor Newsom spoke "[a] day ago."
Soon thereafter, Governor Newsom posted on X that "[t]here was no call." President Trump then provided Fox News Network ("FNN") reporters a "phone log" evidencing the Friday night / Saturday morning call he had with Governor Newsom. On this information, FNN published—through nationally televised reporting overlaid by chyron—that "Gavin Lied About Trump's Call." …
The court allowed Newsom's defamation case to go forward:
Delaware's pleading standards at the motion to dismiss stage are minimal…. A complaint is sufficient to survive a motion to dismiss under [Delaware] Rule 12(b)(6) "[if] a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." …
[1.] It is reasonably conceivable that FNN knew the statements were false at the time of making them.
FNN contends that the "'gist' or 'sting' of the suggestion that Newsom lied was substantially true," because "[t]he word 'lie' certainly encompasses Newsom's misleading tweet categorically denying he had a call with the President." "Substantial truth," FNN asserts, "turns on what Newsom actually said, not what he wishes he had said."
Governor Newsom responds that "the central—indeed, the only—dispute between Newsom and Trump was when the two had last spoken." According to Governor Newsom, this issue was so important that "reporters asked Trump when he has last spoken to Newsom." Governor Newsom's comment that he had no call with President Trump "[a] day ago" was not a lie as "[t]he timing of any call was not minor. It was the question." …
Civitas Symposium on Justice Thomas and the Declaration of Independence
A notable roster of center-right thinkers engages with Justice Thomas' recent lecture.
Justice Clarence Thomas' recent lecture commemorating the 250th anniversary of the Declaration of Independence continues to attract attention and comment. While some on the left found the speech objectionable or offensive, many on the right have found it to be inspiring and worth engaging.
Today, Civitas Outlook has published a symposium of responses to Justice Thomas' lecture with many worthwhile contributions. Here is the line-up:
Hadley Arkes, "Justice Thomas's House Divided Speech";
Linda Denno, "Reclaiming Our American Inheritance";
Richard Epstein, "Justice Thomas's Bulwark of Liberty";
Steven Hayward, "'Silent Clarence' Meets 'Silent Cal'";
Charles Kesler, "The Courage of Justice Thomas";
Phillip Munoz, "On the Liberating and Living Truths of the Declaration of Independence";
Ronald J. Pestritto, "Justice Thomas Teaches About the Declaration and Its Opponents";
Richard Reinsch, "The Courage of the Americans";
Sherry Sylvester, "What Clarence Thomas Told Us in Texas";
John Yoo, "The Declaration's Truths Heal a Multitude of Errors";
Todd Zywicki, "Three Generations of Living Constitutionalists Is Enough."
Zimmerman on "The President and the Universities"
The first step in recovery is recognizing that you have a problem.
Professor Jonathan Zimmerman of the University of Pennsylvania has a worthwhile essay on the state of higher education in Liberties (a relatively new journal that is routinely filled with worthwhile material). His essay, "The President and the Universities" begins:
In March of last year, about six weeks after Donald Trump returned to the White House, I traveled to Washington for a meeting of American education scholars. The opening panel focused — appropriately enough — on Trump's threats to university funding, free speech on campus, and more. Then it was time for questions, and I raised my hand. I said that I agreed with all the critiques of Trump, but I also wondered what those of us who work in higher education might have done — or not done — to bring about this awful moment. Could we use it to look in the mirror, I asked, and not just to circle the wagons?
Dead silence. Then another member of the audience spoke up. "I just wanted to say that I was deeply offended by Professor Zimmerman's use of the term 'circle the wagons,' which connotes a hateful history of Native American displacement and genocide," she said. More awkward silence. Finally the moderator of the panel interjected herself. "Thank you for reminding us that we need to be careful in the language that we use to describe others," she said. So the panel began with a diatribe about Donald Trump's assault on free speech and it concluded with a warning to watch our words.
That signifies a loss of faith in universities themselves. For the past seventy-five years, we have been telling a story about how we enhance democratic dialogue and understanding. Yet we don't really believe it. If we did, the moderator would have asked the objecting scholar to say more about why she bridled at my phraseology. Then the moderator would have asked me to reply, and after that she would have solicited reactions from the audience. And eventually we might have gotten around to the substance of my question, which concerned the delicate matter of what degree of introspection, what sort of critical self-examination, might be required of professors and teachers amid the current crisis. None of that happened, of course. The moderator drew the panel to a moralistic and satisfyingly evasive close, and we all went out to lunch.
"Out to lunch" is where much of higher education is — oblivious about how we got here and how we might change course. Yes, Trump represents a dagger at our heart; and yes, we must join hands to resist him. But long before he came to power, growing numbers of Americans — and not just Republicans — were starting to see higher education as something of a scam. We charge ever-higher prices for degrees of dubious worth, even as we proclaim our commitment to the public good. To make good on that ideal, we cannot simply circle the wagons. We need to look in the mirror. What role have the universities themselves played in this disaster?
Zimmerman is not the first to raise this question. See, for instance, the work of Michael Clune. His essay is nonetheless a worthwhile addition to the calls for greater introspection and reform in higher education.
Victims of Communism Day - 2026
May Day should be a day to honor victims of an ideology that took tens of millions of lives. But we should also be open to alternative dates if they can attract broad enough support.
NOTE: This post largely reprints last year's Victims of Communism Day post, with some modifications.
Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:
May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so….
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis - the biggest in the history of the Western hemisphere. The removal of President Nicolas Maduro has so far done little to change the nature of that regime.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with far-right nationalists in backing Putin's line on the war.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not - so far - reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.
Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.
In the West, the popularity of "democratic socialism" in some quarters is a sign that many have failed to learn the lessons of the communist experience. Democratic socialism has many of the same flaws as its authoritarian counterpart, and - as the Venezuelan case shows - is unlikely to stay democratic for long, if implemented.
Victims of Communism Day is also a good time to remember our duty to help those victims. Among other things, it is unjust to deport migrants fleeing oppressive Marxist dictatorships, like those Cuba, Nicaragua and Venezuela, as the Trump Administration seeks to do to hundreds of thousands who entered the US legally under the CNVH program. Trump has recently ramped up efforts to deport Cubans back to their communist oppressors.
In a 2012 post, I explained why May 1 is a better date for Victims of Communism Day than the available alternatives, such as November 7 (the anniversary of the Bolshevik seizure of power in Russia) and August 23 (the anniversary of the Nazi-Soviet Pact). I also addressed various possible objections to using May Day, including claims that the date should be reserved for the celebration of labor unions.
But, as explained in my 2013 Victims of Communism Day post, I would be happy to support a different date if it turns out to be easier to build a consensus around it. If another date is chosen, I would prefer November 7; not out of any desire to diminish the significance of communist atrocities in other nations, but because it marks the establishment of the very first communist regime. November 7 has in fact been declared Victims of Communism Memorial Day by three state legislatures.
If this approach continues to spread, I would be happy to switch to November 7, even though May 1 might be still more appropriate. For that reason, I have adopted the practice of also commemorating the victims of communism on November 7.
I would also be happy to back almost any other date that could command broad support. Unless and until that happens, however, May 1 will continue to be Victims of Communism Day at the Volokh Conspiracy.
