It grieves me to report that our coblogger, and my friend, Stewart Baker died suddenly a few days ago at age 78. Stewart always wrote and spoke modestly, but he (alongside former District Judge Paul Cassell and former U.S. Commission on Civil Rights member Gail Heriot) was the most accomplished of any of us: In addition to a long and successful career as a lawyer at Steptoe & Johnson, he also served as General Counsel of the National Security Agency (1992-94) and as Assistant Secretary for Policy in DHS (2005-09). At the start of his career, after graduating from UCLA School of Law in 1976, he clerked for First Circuit Judge Frank Coffin and then for Justice John Paul Stevens.
I invariably appreciated Stewart's incisive, knowledgeable, and thoughtful comments on many topics. His perspectives were usually quite conservative, at times more conservative than mine; but even when we disagreed, I always enjoyed reading his work and talking to him, and learned much from him. We also became good friends; I would often look him up when I visited D.C., and just had dinner with him two months ago.
It's shocking to know that he is gone. As the Russians say ("земля ему пухом"), and as the Romans said ("sit tibi terra levis")—may the Earth rest lightly on him.
I expect I've been in some, given the arsenals that I expect some of my friends maintain. Just ran across the term in a court opinion, as a typo for "marital home"—a quick Westlaw search finds over 600 opinions with the same typo.
I'm delighted to report that Profs. Jacob Mchangama (Vanderbilt) & Jeff Kosseff (Naval Academy, moving this year to Minnesota) will be guest-blogging Monday to Wednesday about their new book, The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom. Here's the publisher's summary:
An incisive examination of free speech's global decline and a framework for preserving expression in democratic societies.
The Future of Free Speech confronts a stark truth: the right to speak freely is under siege. Once celebrated as a cornerstone of democratic societies, free expression is now met with growing suspicion and retaliation across the globe. Jacob Mchangama and Jeff Kosseff present a panoramic view of how we arrived at this pivotal moment.
The authors examine a century in which speech rights expanded dramatically―including postwar democratic revolutions and the sweeping protections of the First Amendment―only to find those rights unraveling in the face of new political, technological, and cultural pressures. Today, liberal democracies are imposing speech controls, authoritarian regimes are cloaking censorship in democratic language, and digital platforms wield unprecedented power over global discourse. This book examines the backlash against free speech from all sides: governments criminalizing dissent in the name of national security; lawmakers and activists demanding tighter controls on misinformation, hate speech, and offensive content; and AI systems removing speech at a scale and speed that dwarfs historical forms of censorship. At the same time, faith in free speech itself is waning, even in the very societies that once championed it.
The Future of Free Speech argues for a reinvigorated, global commitment to open dialogue. Mchangama and Kosseff advocate nonpartisan, civic-minded solutions that resist both government overreach and corporate silencing. They offer a compelling case for how free speech can meet modern challenges without abandoning its foundational role in sustaining democracy, human rights, and shared understanding.
Each fall, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. At that time, because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me. I have now read a lot of books on the Constitution. The complete list of all the books I have assigned is below.
Since 2005, I have assigned 105 books by 96 authors, with James Fleming, Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Jonathan Gienapp, Philip Hamburger, Kim Roosevelt, and David Bernstein each making more than one appearance. Over the years, I assigned four books in manuscript before publication. In addition to my manuscript of the book I am now writing on libertarianism, here are the five "recent books on the Constitution" I am assigning for fall of 2026:
I select books I think I ought to read–either because of the subject or the author. I then hold off reading them myself so I can read them at the same time as the students. This enables me to react to the books along with them, and for me to remember the nuances of the books for class discussion.
The seminar format is to read 6 books, taking 2 weeks on each book, with the author coming to the class during the second week to discuss the book. The first book is now always one of mine to use as a trial run and to give the students an idea of where I am coming from when we discuss the other books. When books are longer than 250 pages, I ask the author to tell me which 250 pages I should assign. If I assign much more than 125 pages per week, I fear the students won't read them, or won't read them carefully enough. To help assure that they do, students submit one-page summaries of each half of the book (graded pass-fail). On the day before the author's visit, they submit a 5500 character critique of the book, which I send to the author electronically the day before class. (They all read them.) When the class ends, there is no exam or paper for the students to write or for me to grade. We are done!
Students consistently tell me that the course is extremely enriching, and helps them develop their critical skills. They are never expected to read whole books and rarely asked to concisely formulate their own objections to scholarship. It is also empowering for them to see how well they are able to find the holes in a professor's book-length presentation. I find that, collectively, the students are able to nail the weaknesses of every book (except mine, of course).
[Note to law professors: I have a budget to pay for the authors' travel expenses. But now that we all have access to Zoom teaching, this seminar format can be replicated anywhere at zero cost. Wouldn't it be great if there were a dozen or more such book seminars around the country? Try it. I promise you will love it.]
If you click on READ MORE you will see why teaching this class has been enormously rewarding for me. Offer my heartfelt thanks to all these authors for trekking to DC to discuss their books with my students.
John Inazu, Liberty's Refuge: The Forgotten Freedom of Assembly (Yale 2012)
Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts (West, 2012)
Abner Greene, Against Obligation (Harvard 2012)
Sandy Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford 2012)
2012 (Spring)
Michael J. Gerhardt, The Power of Precedent (Oxford 2008)
Robert Bennett & Lawrence Solum, Constitutional Originalism (Cornell 2011)
Gary L McDowell, The Language of Law & the Foundations of American Constitutionalism (Cambridge 2010)
Eric Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges (Praeger 2012)
Michael Greve, The Upside-Down Constitution (Harvard 2012)
Alexander Tsesis, The Thirteenth Amendment and American Freedom (NYU 2004)
2011:
H. Jefferson Powell, Constitutional Conscience (Chicago, 2008)
Jeremy A Rabkin, Law Without Nations? (Princeton, 2005)
Christian G. Fritz, American Sovereigns (Cambridge, 2007)
Timothy Sandefur, The Right to Earn a Living (Cato Institute, 2010)
Sonu Bedi, Rejecting Rights (Cambridge, 2009)
Alison LaCroix, The Ideological Origins of American Federalism (Harvard, 2010)
2010:
David Bernstein, Rehabilitating Lochner (Chicago 2011) (assigned ms)
Brian Tamanaha, The Formalist-Realist Divide: The Role of Politics in Judging (Princeton, 2009)
Earl Maltz, Slavery and the Supreme Court, 1825-1861 (Kansas, 2009)
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge, 2004)
George Thomas,The Madisonian Constitution (Johns Hopkins, 2008)
David Strauss, The Living Constitution (Oxford, 2010)
2007:
Alex Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard, 2002)
Dan Farber, Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have (Perseus, 2007)
Jim Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago, 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge, 2006)
Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007)
2006:
Philip Hamburger, Separation of Church and State (Harvard, 2002)
Kermit Roosevelt, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale, 2006)
Elizabeth Price Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale, 2006)
John Yoo, The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11 (Chicago, 2005)
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford, 2006)
2005 (Taught when I was a visitor at Georgetown. Only Mark Tushnet, who was then still on the Georgetown faculty, appeared. His class visit gave me the idea to invite all the authors in the future):
Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, 2000)
Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 2001)
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, 2004)
Daniel A. Farber, Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Chicago, 2004)
James R. Stoner, Common Law Liberty: Rethinking American Constitutionalism (Kansas, 2003)
From Remus Enterprises 1, LLC v. Breece, decided Thursday by the D.C. Court of Appeals (Judge Shanker, joined by Judges Easterly and Ruiz):
Punctuation matters. At the heart of this case is the placement of a comma. Appellant Remus Enterprises 1, LLC ("Remus 2023") sued appellee Quinn Breece in Superior Court asserting tort claims arising out of Remus 2023's alleged ownership of, and desire to sell, a parcel of property located at 3308 16th Street, NE, in Washington, D.C. But a consent judgment in another case established that a different entity with a name containing all the same words and letters but a differently placed comma—Remus Enterprises, 1 LLC ("Remus 2018")—was the real owner of the property. Because Remus 2023 does not have standing to sue based on a different entity's property interest, we conclude that the trial court lacked subject-matter jurisdiction over the case, and we affirm the trial court's dismissal of Remus 2023's complaint, although on grounds different from those relied on by the trial court….
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."
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.
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.
UPDATE: Johan Norberg wrote to me in response to this post, and authorized me to reprint this part of his insightful message. Here it is:
I share your assessment of the difference and I think you point to the two most likely explanations in your article:
1) we live close to Russia and know from experience that we have to band together to safeguard our freedom and independence.
2) we also know from recent history that nationalism has a tendency to unleash madness within ourselves and it repeatedly results in war and destruction, so it's not something to play games with. In a more nationalistic and aggressive era, we fear what others might become, but also what WE might become. "You don't want to make the Hulk angry."
Younger readers may not get the Hulk reference. See here.
UPDATE: #2 Rasheed Griffith also wrote me in response to this post, and also authorized me to reprint part of it:
I completely agree with your observations on the differences between the two groups.
On this point of yours: "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." The combined Lisbon Treaty of the EU offers an even stronger legal basis for pro-freedom litigation. The core economic freedoms are explicitly enumerated: Articles 26 and 28–66 TFEU establish: Free movement of goods, of establishment, to provide services, and of capital. And there is extensive case law at the CJEU [Court of Justice of the European Union] that has affirmed these rights against national restrictions. Some I discussed here. Unlike the US, the EU does have an economic (pro-libertarian) constitution. There are even articles preventing certain kinds of government subsidies (State Aid). And all of these can be directly litigated in any Member State.
I should have referenced the Lisbon Treaty in my original post. It is, I think, far from clear whether European constitutional structures are, overall, more libertarian (in the sense of protecting economic liberty) than the US Constitution. But European libertarians and other free market advocates should make greater use of strategic litigation, regardless.
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:
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.
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.
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.
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.
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).
Secretary of Defense Pete Hegseth. (Kyodonews/Zuma Press/Newscom)
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.
