From McIntyre v. Little Miami School Dist., decided Monday by Judge Matthew McFarland (S.D. Ohio) (appeal pending):
Plaintiff George McIntyre is a teacher at Little Miami High School, a school within Defendant Little Miami School District ("District"), where he teaches American History and Advanced Placement European History. McIntyre placed a poster in his classroom displaying the slogan "Hate Has No Home Here" ("Poster"), depicted below:
As shown above, the Poster features five hands holding hearts filled with distinct symbols, including the American flag, a peace sign, the rainbow pride flag, and the transgender pride flag. McIntyre hung up the Poster to remind his students to "treat all their classmates with mutual respect, regardless of personal opinions or beliefs." …
The District's "longstanding practice" has been to permit teachers to decorate their classrooms and display personal items. That latitude, however, is "defined by" the District's Little Miami School Board ("Board") policy.
"Why not seek the win/win?" Justice Brett Kavanaugh posed that question to Colorado's attorney during last week's oral argument in St. Mary Catholic Parish v. Roy, a case involving Catholic preschools and the state's nondiscrimination requirements. His question raises a broader issue: Why is compromise so difficult in conflicts between religious freedom and LGBTQ rights?
Some background: Colorado operates a universal preschool program that provides public funding for children attending participating schools, including religious schools. But participating schools must agree not to discriminate on several grounds, including sexual orientation and gender identity. Catholic preschools argue that these requirements interfere with their religious mission, which includes teaching Catholic doctrine about marriage and requiring families to support that teaching. Colorado maintains that religious schools may participate, but must comply with the same nondiscrimination requirements as other schools.
During oral argument, Kavanaugh noted that approximately 2,000 preschools participate in Colorado's program, while only 34 Catholic preschools are involved in the dispute. The record does not identify any family headed by a same-sex couple that has sought admission for a child to one of these schools and been rejected. Why couldn't Colorado accommodate these schools while ensuring that other families had ample preschool options?
Colorado's attorney responded that equal access to publicly funded education requires more than the availability of alternative schools. The Catholic schools have a principled position as well. Why should they have to compromise their religious identity to participate in a generally available public program? They aren't asking Colorado to endorse Catholic doctrine, only to permit them to maintain their religious mission.
So why is compromise so elusive? St Mary illustrates a dynamic I wrote about in an article several years ago on Masterpiece Cakeshop, another Colorado religious freedom controversy. I argued that conflicts over religious freedom and LGBTQ rights reflect profound cultural divisions in American society. These controversies implicate competing understandings of identity, dignity, and equality.
For traditional religious believers, marriage and sexuality implicate fundamental religious convictions. Requiring religious schools to disregard those convictions in their admissions policies seems like an intrusion on religious autonomy. For supporters of LGBTQ rights, allowing publicly funded schools to exclude children because of their parents' relationships seems like a denial of equal dignity and citizenship. Each side regards the other's position as demanding a concession on something fundamental. Besides, each side may think it has compromised enough. Colorado doesn't prohibit religious instruction in funded schools; the schools don't ask Colorado to endorse their position on same-sex marriage.
This isn't the first time the Court has confronted such a problem. About a decade ago in Zubik v. Burwell, Justice Elena Kagan explored possible accommodations in a contraception mandate controversy, and the Court subsequently sought additional briefing on a compromise.
Kavanaugh's question makes practical sense. The difficulty is that the parties don't understand the controversy primarily in practical terms. Each sees fundamental principles at stake. The Court will resolve the legal dispute in St. Mary. But it cannot resolve the deeper social divisions that make compromises in these cases so difficult.
I discuss these questions in a new episode of Legal Spirits, available here.
[T]he story begins with a viral video of a parking-lot argument. Convinced that one of the women [Couture] had broken the law, Noshirvan set out to uncover her identity. He deployed a "sock puppet" social media account, posing as a concerned bystander to gain her trust. The ruse worked, and Couture unwittingly confirmed her involvement. Armed with that info, Noshirvan published a TikTok video broadcasting both Couture's name and her employer—Garramone Plastic Surgery.
Noshirvan's followers quickly took to the comments with ideas for how to retaliate. One suggested to "schedule appointments and not show up[.]" Another pitched calling Garramone Plastic Surgery to ask about Couture. And two users went so far as to agree that "we are now working on reviews for his business[.]" Just as the comments suggested, Garramone Plastic Surgery received emails, voicemails, and fictitious reviews….
Apparently having endured enough of this negative publicity, patients cancelled their scheduled procedures, a physician left the practice, and Garramone Plastic Surgery hired security personnel and installed an enhanced security system. Garramone Plastic Surgery now seeks to recover those damages….
The court held that Garramone's tortious interference claim against Noshirvan could go forward:
In U.S. v. Alexander, decided yesterday by Judge Paul Engelmayer (S.D.N.Y.), the criminal complaint (which yielded an indictment) alleges:
[O]n or about August 20, 2025, [Alexander] sent threatening electronic messages via a social media application … to the spouse ("Victim-1") of a U.S. Immigrations [sic] and Customs Enforcement ("ICE") deportation officer ("Officer-1"). The first message stated, "Are these your kids you had with your Nazi murder rapist husband. They will get it too. Never think that his whiteness will protect them." The second message consisted of a photograph of Victim-1's and Officer-1's children….
Defendant argued her speech was protected the First Amendment, but the court declined to dismiss the indictment:
The Republicans may be able to effectively bottle up the impeachment in committee for the rest of the current Congress (which ends on January 3, 2027). But it will almost certainly come back in the new Democratic-controlled Congress. With approximately 260 seats in the new House, the Democrats (virtually all of whom support impeachment) should easily be able to vote to impeach. At that point, it will be harder to get the necessary 11 or more Republican votes needed to secure the required 2/3 majority to convict in the Senate (the Democrats will have 54 to 56 seats in the new Senate, depending on the outcome of still-incomplete vote counts in Alaska and Mississippi). But Hegseth will at least have to go through a trial focused on his role in the unconstitutional Iran War, and in the murder of over 200 people in "drug boat" strikes in the Caribbean and the Pacific, among other charges.
And, though it's a steep hill to climb, it is by no means impossible he might actually get convicted, as he is very unpopular on Capitol Hill (and elsewhere), and the evidence against him is strong. It is notable that House Republicans chose to use this procedural maneuver rather than just vote down the impeachment directly. It suggests they might not have had the votes to do the latter.
In previous posts, I explained in much more detail why Hegseth deserves to be impeached and convicted, and considered an excellent article on the subject by prominent conservative national security law expert Andrew McCarthy (who reaches similar conclusions).
It ain't over till it's over - and this one is far from that point.
Trump v. Slaughter affirmed the President's presumptive power to remove principal officers (other than members of the Federal Reserve Board). But does this power also extend to inferior officers? And is it constitutional for Congress to effectively insulate some inferior officers from presidential removal?
Today, in Abramowitz v. Lake, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court injunction barring the removal of Michael Abramowitz, the head of the Voice of America. In the process, it rejected the Department of Justice's arguments that the district court lacked jurisdiction to consider the case and held Congress may (as a practical matter) insulate inferior officers by presidential removal by vesting removal authority in the hands of an agency head that requires Senate confirmation.
Judge Pillard wrote for the panel, and was joined by Judges Srinivasan and Pan. Here is how she summarized the opinion.
Seeking to preserve the journalistic integrity of the news broadcasters within the U.S. Agency for Global Media, Congress empowered a separate agency, the International Broadcasting Advisory Board, with final authority over the hiring and firing of the broadcasters' heads-of-network. The leaders of the Agency for Global Media ignored that statute when they attempted unilaterally to fire Michael Abramowitz, the head of Voice of America. Abramowitz sued, and the district court permanently enjoined
the Agency for Global Media from removing Abramowitz without the International Broadcasting Advisory Board's approval.
We affirm the injunction. The district court had jurisdiction to enforce the statutory requirements governing the Voice of America directorship. Those statutory requirements are consistent with Article II. And the district court had equitable power to enjoin defendants from effectuating the illegal termination.
While acknowledging that, as a general matter, Congress has channeled litigation concerning allegedly improper removal of government employees to the Merit Systems Protection Board under the Civil Service Reform Act, the panel concluded that this general rule does not apply to the VOA as "Congress gave no hint" that it sought to divest district courts of jurisdiction to hear cases such as this when it revised the statute governing VOA in 2021. The removal protection of the VOA head "is not a standard employment law," according to the D.C. Circuit, "but a durable barrier against any breach of the firewall protecting the journalistic integrity of Voice of America." Writes Judge Pillard: "Congress had no reason to channel Abramowitz's claim through the CSRA, and every reason not to."
On the merits, the panel concluded Congress lawfully insulated the head of the VOA--an inferior officer--from removal by the President by vesting authority to appoint and remove the head of VOA in the International Broadcasting Advisory Board (IBAB).
IBAB is a seven-member "separate independent agency," the members of which must be bipartisan and are subject to Senate confirmation. IBAB is the relevant department head, even though it does not directly supervise VOA, as that job is performed by the U.S. Agency for Global Media--an arrangement the panel concluded is lawful under Morrison v. Olson.
The Department of Justice argued this unconstitutionally constrains the President's removal power, but the court was unconvinced.
Wrote Pillard:
So long as the President has adequate control over the department head, and the department head can control the inferior officer (as is the case here), the President can transitively control the inferior officer. The department head's supervision "preserv[es] the chain of command in Article II." Braidwood, 606 U.S. at 754.
Yet the practical effect of the court's ruling is that there is nothing the President can do to replace the head of the VOA. Six of the seven IBAB seats are currently open (having been removed by President Trump in 2025). Thus the Board is inquorate, and lacks the ability to remove the head of the VOA (or do much else). And, should Congress refuse to confirm new IBAB members, the current VOA head will remain in place. The DC Circuit may conclude this arrangement formally leaves the President with "adequate control" over the Board, but what good is control over a department head that is incapable of acting?
I suspect the Administration will seek further review, ultimately in the Supreme Court. The question is whether it files a petition for certiorari right away, or first seeks rehearing en banc. While there is no likelihood the full D.C. Circuit will disturb the panel ruling, a petition for rehearing en banc might generate a dissent that could help attract the justices' attention. This case would also give the justices the opportunity to revisit Morrison v. Olson and say more about the extent to which inferior officers may (or may not) be insulated from presidential removal.
This speech was delivered during Wyoming Law Week at the University of Wyoming College of Law, October 13, 2026.
Ladies and gentlemen, cowboys and cowgirls, good evening.
The title of my presentation, "The Peaceful Second Amendment Revolution," is about a revolution in the original meaning of that word: a return to the original starting point, as when the earth completes a revolution around the sun.
The American Revolution began in that conservative sense. The Americans wanted the British to respect all their pre-existing rights, including the written right to arms from the 1689 English Bill of Rights.
Law Week is an appropriate time to reflect on the rule of law and the revolutionary role of lawyers, then and now.
Writing in 1789, after victory in the American Revolution, physician David Ramsay explained one reason for the Revolution: "The study of law was common and fashionable." David Ramsay, 1 A History of the American Revolution 29 (Lester H. Cohen ed., Liberty Fund, 1990) (1789). According to Ramsay:
"No order of men has, in all ages, been more favourable to liberty, than lawyers. When they are not won over to the service of government, they are formidable adversaries to it. Professionally taught the rights of human nature, they keenly and quickly perceive every attack made upon them. While others judge of bad principles by the actual grievances they occasion, lawyers discover them at a distance, and trace future mischiefs from gilded innovations."
Ramsay pointed out that half of the First Continental Congress, in 1774, were lawyers.
"Bred in the habits of public speaking, they made a distinguished figure in the meetings of the people, and were particularly able to explain to them the tendency of the late acts of parliament. Exerting their abilities and influence in the cause of their country, they were rewarded with its confidence."
We ought always feel gratitude to those lawyers, and other Americans, who defended and advanced natural rights during the American Revolution. Tonight is the story of how one of the rights which those lawyers and others had guaranteed in our Constitution was nearly obliterated during the last third of the twentieth century. And how the peaceful revolution that has restored the Second Amendment was the cooperative work of millions of Americans, especially lawyers, and among them, especially legal scholars.
Although the story does involve the recovery of the original meaning of Second Amendment, the story is also about living constitutionalism; the most important reason the right to keep and bear arms survived against the attempts to destroy it was that the right lives and thrives in the hearts and minds of the American people.
The U.S. Supreme Court decisions of District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010 were the opposite of cutting edge. Those decisions were lagging indicators. They were the long-term consequence of elections, of a generation of historical scholarship, and of the refusal of millions of ordinary people to accept that a right they had always exercised and cherished could be defined out of existence by unreasoned pronouncements.
From today's decision by Judge Jeffrey Kuntz (S.D. Fla.) in Trump v. BBC:
In Trump v. CNN (S.D. Fla. 2023), aff'd (11th Cir. 2025), Judge Singhal concluded that "the complained of statements are opinion, not factually false statements, and therefore are not actionable." In Trump v. Dow Jones & Co., Inc. (S.D. Fla. 2026), Judge Gayles dismissed President Trump's claims that the Wall Street Journal failed to adequately investigate claims it reported.
Those cases involved a news entity reporting on a story. Here, the news entity created the story. BBC admitted as much by confirming it had edited a video to make it appear as though President Trump made a statement he never made.
And it acknowledged it chose to release the video in a documentary only a week before the 2024 Presidential Election, at the time it would have the most impact. To make sure it was seen in Florida, BBC even emailed U.S. and Florida based commenters with instructions to on how to view the documentary.
Whether President Trump can prove these claims and establish he sustained damages at summary judgment or trial is left for another day. For now, after careful review, and being otherwise fully advised, BBC's Motion to Dismiss is denied [as to the defamation claim] ….
On October 28, 2024, one week before the 2024 Presidential Election, BBC broadcast a documentary titled "Trump: A Second Chance." In the Documentary, a twelve-second segment portrayed President Trump giving a speech to his supporters on January 6, 2021:
We're going to walk down to the Capitol and I'll be there with you. And we fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore.
This two sentence, twelve-second segment, represents the core of Trump's complaint. However, the issue with the statement is that Trump never said it. The above statement is actually two parts of a speech spliced together. Instead, the first remarks that Trump made were:
My new essay in Civitas tries to make sense of how the midterm election affects the broader conservative legal movement. Here is the introduction:
President Donald Trump's surprise 2016 election saved Justice Antonin Scalia's seat and perhaps the Supreme Court. Over the ensuing decade, Trump appointed scores of originalist judges at all levels of the judiciary and led a political movement that supported originalist state court judges and attorneys general. But that movement came to a screeching halt with the 2026 midterm election. Indeed, the blue tsunami, largely a referendum on Trump, threatens to drown originalism. In deep red states, conservative judges were washed off the bench. Also swept from office were conservative governors who appoint judges and attorneys general who litigate in those courts. Given the large Democratic Senate majority and unfavorable maps for 2028 and 2030, a Republican Senate with the votes to confirm originalist judges may not return until 2033 at the earliest. An entire generation of talent will be wasted. A necessary condition for a successful legal movement is a successful political party. Legal conservatives need to carefully reconsider the political circumstances best suited to defend the Constitution.
The conservative legal movement has always existed in conjunction and disjunction with the broader conservative political movement. Certain long-term projects concerning the separation of powers and individual rights endure regardless of who is in office, but legal disputes arise with the exigencies of the day. The conservative legal movement will often, but not always, coalesce around current conservative political needs. Likewise, the conservative political movement will often, but not always, coalesce around the conservative legal movement. During tworecent events, Justice Elena Kagan recognized this dichotomy. She observed that conservative members of the Supreme Court decide cases that are right "out of the playbook of the conservative legal movement," even as some of President Trump's policies suffer setbacks in the courts. Indeed, Trump has repeatedly expressed frustration that his appointees rule against him.
And here is the conclusion:
Many legal conservatives came to terms with voting for Trump in 2016 as a way to save the Supreme Court. Many more legal conservatives came around to Trump in 2020 based on his track record of appointing originalist judges--although I think that record is overstated. When Trump was on the ballot in 2024, some legal conservatives supported Trump for fear that Kamala Harris would pack the Supreme Court. But 2026 altered the calculus. Trump, and those candidates he endorsed, were routed in red states. Moreover, conservative judges and attorney generals were wiped from office. When the top of the ticket is no longer able to win elections, downballot judges and attorneys general do not stand a chance. Red states can only bleed for so long until they turn blue. A necessary condition for a successful legal movement is a political party that can produce viable candidates. Going forward, the path of advancing the conservative legal movement requires a political reorientation. The conservative legal movement can only survive if conservative lawyers are in public office to move the law. The blue tsunami cannot be allowed to drown originalism.
In recent years, various plaintiffs have brought numerous legal claims against social media companies. In this opinion, we address only two causes of action—negligence and public nuisance—in the context of the laws of California, Florida, Washington, and Rhode Island, brought by school districts…. Plaintiffs generally claimed Defendants created a "mental health crisis" among their students that harmed Plaintiffs by disrupting their educational mission, requiring them to spend more money and staff time to address student mental health and discipline, and causing students to vandalize their property….
We acknowledge the serious allegations of mental health harms experienced by many students and the impact of those harms on Plaintiffs' schools and student bodies…. [But the relevant precedents] establish that these plaintiffs cannot proceed under the legal theories and factual allegations they have pled….
Negligence Causes of Action …
Here, Plaintiffs allege they suffered three general kinds of harm: (1) "incur[ring] significant financial costs" to address the youth mental health crisis allegedly created by Defendants' platforms; (2) "frustrat[ion] [of their] pedagogical mission" in diverting staff time and resources from education to counter the disruptive effects of the crisis; and (3) property damage inflicted by students. In part V., we conclude Plaintiffs' allegations their missions were frustrated do not state a cognizable negligence claim, and in part VI., we conclude Defendants have immunity from liability arising from Plaintiffs' alleged property damage. {Plaintiffs do not allege Defendants directly damaged their property; instead, they allege Defendants' platforms influenced students to vandalize school property because the platforms showed them so-called "challenge videos," created by third parties, that encouraged vandalizing school property. The trial court determined [47 U.S.C. § 230] provided Defendants immunity from liability arising from the challenge videos. We agree.}
That leaves Plaintiffs with only alleged financial harms …. The crux of the negligence causes of action is the applicability of the so-called "economic loss rule." … "… In general, there is no recovery in tort for negligently inflicted 'purely economic losses,' meaning financial harm unaccompanied by physical or property damage" [even as to foreseeable economic losses -EV]…. "[A]ssume[ ] a defendant negligently causes an automobile accident that blocks a major traffic artery such as a bridge or tunnel. Although defendant would be liable for personal injuries and property damage suffered in such an accident, it is doubtful any court would allow recovery by the myriad of third parties who might claim economic losses because the bridge or tunnel was impassible." …
"[A]t this stage of the case, ... [plaintiff] plausibly pleads that [the university] discriminated against her by disregarding [her medial records] to find that she used AI when the writing style of the course papers could have resulted from her disabilities."
Plaintiff Jane Doe filed this lawsuit against the University of Michigan and several individual defendants after she was disciplined for her alleged use of AI to write course papers. Plaintiff, who has generalized anxiety disorder (GAD) and obsessive-compulsive disorder (OCD), maintains that the "tone, meticulous structure, [and] stylistic consistency" of her writing can be misinterpreted as AI. Unconvinced, Defendants sanctioned Plaintiff with disciplinary probation and required her to rewrite those course papers and write a reflective essay. After challenging that discipline without success, Plaintiff filed suit, asserting claims under the due process clause, the Americans with Disabilities Act (ADA), and the Rehabilitation Act (RA). …
This dispute unfolded last fall when Plaintiff was an undergraduate student in Great Books 191, a classical studies course at the University of Michigan. The class was taught by Theo Nash, the course's graduate student instructor, and Basil Duffalo, the lead instructor. According to Plaintiff, Nash made public "statements reflecting a predisposition to assume AI misuse by students and to treat AI-related concerns as a core academic 'values' issue."
The issues at the heart of this case started when Nash filed an academic misconduct accusation with the Office of Student Academic Affairs (OSAA), indicating he was "immediately suspicious" Plaintiff had used AI to write a course paper. Plaintiff denied that accusation, "explaining that [her] disability-related writing traits could be misinterpreted as AI and should not be treated as proof of misconduct."
Yesterday, I wrote about why Secretary of Defense Pete Hegseth deserves to be impeached and convicted for his role in in starting an unconstitutional war and perpetrating over 200 cases of outright murder with the "drug boat" strikes. Today GOP Rep. Thomas Massie filed impeachment charges in the House of Representatives. Even if they don't pass in the narrowly Republican-controlled lame duck Congress, they will almost certainly do so in the incoming Democratic one. Meanwhile prominent conservative legal commentator, national security law expert and former federal prosecutor Andrew McCarthy has published an excellent overview of the charges in the National Review.
McCarthy is far to my right, and far more sympathetic to the War on Drugs (I myself believe it should be abolished). Thus, it's notable that he and I agree that Hegseth should be convicted for his role in the drug boat strikes, which McCarthy characterizes as "indefensible":
I do not believe there is any viable justification for the extrajudicial killings by military force of operators of suspected drug boats. Drug trafficking is a crime, not an act of war. Our law addresses it through trial and imprisonment, not the use of military force…. The administration has not proved that the boats were ferrying narcotics, much less that the drugs were headed to the United States. The president's designation of Venezuelan criminal gangs as foreign terrorist organizations, besides being legally dubious (drug dealing is not "terrorist activity" as defined in federal law), does not authorize the use of force (it instead makes material support to the organization a crime and helps the government cut off funding sources). While the unauthorized killings in the Caribbean and eastern Pacific have not drawn the level of public ire that the Iran war has, they are indefensible, and Hegseth has been their loudest, crudest champion.
As noted in my earlier post, this view is similar to that of John Yoo, well-known former Bush Administration official and leading conservative advocate of sweeping executive power over national security and foreign affairs.
McCarthy also argues Hegseth should be convicted on at least one other charge:
Similarly, I do not believe there is any defending Hegseth on the charge that he has abused command authority and violated constitutional separation-of-powers principles in trying to discipline and censure Senator Kelly, a retired Navy captain (who remains subject to the Uniform Code of Military Justice). Hegseth's actions, undoubtedly endorsed by the president, constituted unlawful command influence. More importantly, they abused executive power in an effort to muffle congressional criticism. The haughty Hegseth was playing a dangerous game here; if it has now come back to bite him, he has himself to blame.
This charge is less within my expertise than some of the others. But I agree with McCarthy here.
McCarthy also appears to recognize that the Iran War is illegal, but suggests that Hegseth does not deserve impeachment on this score, because he was just obeying Trump's orders and implementing his policy. He also notes (correctly) that previous presidents have gotten away with similar initiations of war without congressional authorization.
I disagree for reasons summarized in my previous post:
Obviously, the ultimate perpetrator of these illegal acts is not Hegseth, but Trump. The former was following the latter's illegal orders (though he likely also helped influence Trump to give those orders in the first place). But sanctioning officials for obeying illegal orders is still important. That's one of the lessons of the Nuremberg trials.
I would add that Hegseth wasn't just some low-level flunky merely obeying orders. He has had a major influence on policy, and was one of the key architects of both the Iran War and the boat strikes. OK, maybe he is a flunky; but not a low-level one. He bears far greater responsibility than, e.g., servicemembers at the bottom of the chain of command.
As also noted in my earlier post, it is indeed true that previous presidents, such as Barack Obama, have gotten away with starting illegal wars. Obama deserved to be impeached, as well. But that makes it all the more imperative to start enforcing this part of the Constitution more effectively. Moreover, the Iran War is much larger and has had far worse effects than any other illegal wars of the last several decades. Obama's illegal wars were much smaller, by comparison.
I will not say much about McCarthy's analysis of the other charges, except briefly on that focused on the removal of Venezuelan dictator Nicolas Maduro. McCarthy laments that Trump left the brutal socialist regime in power (minus Maduro), but suggests that the intervention might have been legally justified by the precedent of the 1989 US military action that removed and captured Panamanian strongman Manuel Noriega. I differ for reasons I outlined here:
Defenders of the legality of Trump's actions cite the 1989 invasion of Panama, which was undertaken in large part for the purpose of apprehending Panamian dictator Manuel Noriega; like Maduro, Noriega was charged with smuggling illegal drugs into the US. But the 1989 Panama precedent does not actually justify Trump's actions. On December 15, 1989 (five days before the US invasion), Noriega foolishly announced that Panama and the US were in a "state of war," thereby creating conflict between the two countries that did not exist in the Venezuela case. In addition, Panamanian forces had killed or wounded two US military personnel in the Panama Canal area, and detained other American citizens. Unlike Noriega in 1989, the Venezuelan regime did not declare war on the US or otherwise initiate a military conflict. Thus, congressional authorization is needed to make any US military intervention constitutional.
That said, I think the Maduro intervention charge is much weaker than the Iran War and boat strike charges. The Maduro action was on a much smaller scale, and has not had anything like the same horrific effects. The abusive prosecution charge is also more compelling than that focused on Maduro. Congress would do well to focus attention on the strongest charges and convict Hegseth on them.
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) grants the Secretary of Homeland Security broad authority to construct border barriers and roads "to deter illegal crossings in areas of high illegal entry into the United States." The same section expressly authorizes the Secretary "'to waive all legal requirements'" as "'necessary to ensure expeditious construction'" of those barriers and roads, and sharply limits judicial review of all claims arising from such waiver determinations. Specifically, the statute provides that "'[a] cause of action or claim may only be brought alleging a violation of the Constitution of the United States'" and courts "'shall not have jurisdiction'" over nonconstitutional claims. §102(c)(2)(A).
Earlier this year, the Secretary invoked Section 102's waiver authority to initiate a border-construction project at the U.S.–Mexico border, in a region that U.S. Customs and Border Protection has designated the "Big Bend Sector." The Secretary found that the Big Bend Sector "is an area of high illegal entry" requiring additional border barriers, and waived the application of a variety of environmental and conservation laws to facilitate expeditious construction.
Shortly thereafter, respondents—an individual river guide, an environmental nonprofit, and a nonprofit organization dedicated to preserving a historic church in Ruidosa, Texas—challenged those waiver determinations by filing suit in the U.S. District Court for the Western District of Texas. Respondents claimed, among other things, that the Secretary's waiver determinations "violat[ed] the major questions doctrine under the U.S. Constitution, Article I, Section 1." Although styled as constitutional, that claim simply alleged that the Secretary exceeded his statutory authority in issuing the waivers.
On October 2, 2026, the District Court entered a preliminary injunction blocking the Secretary's waivers and halting all associated construction. The District Court acknowledged that its jurisdiction was limited to constitutional claims. But it nonetheless concluded that respondents' "major questions doctrine claim" qualified because, in its view, the "major questions doctrine is a constitutional clear statement rule grounded in separation of powers." The court further held that respondents' "major questions doctrine claim" was likely to succeed on the merits because the Secretary lacked "'clear congressional authorization' to issue" the waivers. Because the Fifth Circuit lacks jurisdiction to hear this case, IIRIRA §102(c)(2)(C), the Solicitor General filed an application requesting either summary reversal or a stay of the District Court's preliminary injunction.
Todd Butler has now posted his questionnaire for the Senate Judiciary Committee. Here is the chronology Butler offers for his nomination:
On June 29, 2026, Senator Roger Wicker contacted me about a potential vacancy on the United States Court of Appeals for the Fifth Circuit. I spoke with Senator Cindy Hyde-Smith the following day. On July 1, 2026, an official from the White House Counsel's Office contacted me to arrange an interview. On July 13, 2026, I interviewed with officials from the White House Counsel's Office. Following my interview, I received periodic updates from Senator Wicker about the process. On October I, 2026, President Trump called to inform me that he planned to nominate me for a position on the United States Court of Appeals for the Fifth Circuit.
There is a very relevant date missing here. On September 28, 2026, Judge Southwick publicly announced that he would take senior status. Yet three months earlier, Senator Wicker contacted Butler about the potential vacancy.
As I said from the outset, the fix was in. There was some sort of deal involving Wicker, Southwick, and the White House. I'm sure this interview was pro forma. and doubt any other candidates were interviewed. Judge Southwick could have announced his intentions at any time in August or early September, but he waited until the last possible moment to jam up the process, and ensure Butler would not go down. I do hope at least one Senator asks Butler if he is aware of any communications in which Judge Southwick, directly or indirectly, conditioned his willingness to take senior status if Butler is the nominee.
As for the rest of the SJQ, let's just say Butler's pantry is bare. Or, the Butler didn't do it.
Butler went to law school between 2005 and 2008, but he wasn't a member of the Federalist Society. That makes sense, as he wrote critically of Justice Scalia, originalism, and the Second Amendment. He wasn't a member while he clerked. Indeed, he didn't become a member of the Federalist Society until 2016. I suspect lots of people joined before or after Trump's victory. It would help with career prospects. He has never held any leadership positions in FedSoc. But rest assured that he was active in the Inn of Court and the Mississippi Bar, holding several leadership positions.
Butler has extensive experience in employment law. In addition to the publications I flagged, Butler speaks and writes often about the EEOC, FLSA, and related topics of municipal law. His only professional exposure to constitutional law involves defendant local officials who are sued for violating First Amendment rights. After Olivier v. City of Brandon, his most significant case was as defense counsel in a wrongful death case. He taught at the Mississippi College of Law "periodic[ally]" between 2008 and 2016 but does not recall which semesters he taught. He also does not have copies of the syllabi.
Here is how Butler describes his pro bono work:
Over the course of my career, I have accepted pro bono clients, typically through the Mission First Legal Aid Clinic or the Mississippi Volunteers Lawyers Project. I have assisted with adoptions, child visitation matters, and other domestic issues. I also have provided pro bono services to a local church, including contract review and procedure drafting, in connection with the operation of a faith-based children's center. I advised a local pastor on a land acquisition that he is considering using for a fellowship facility. And I have volunteered, along with others at my law firm, at Stewpot Community Services, where we served meals to people experiencing homelessness.
There is no pro bono work that would remotely be associated with the conservative legal movement. And no, working for a church does not necessarily make a person conservative.
If I were to show you this questionnaire, without any knowledge of Mississippi politics, would you possibly think this was a viable record for the Fifth Circuit? No.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
