Sonya Shaykhoun ("Plaintiff") is a licensed New York attorney with 21 years of experience, including expertise in intellectual property licensing, proceeding pro se in this action…. On May 17, 2023, Plaintiff posted a "Tweet" on X.com regarding an unlicensed vendor in Riverside Park ….
Here's the Tweet, from the Complaint:
Back to the opinion:
The Tweet garnered nearly 7 million views and sparked significant engagement, both negative and positive. Plaintiff made $170.97 from the Tweet through X.com's monetization program from August 9, 2023 to May 27, 2024. Plaintiff thereafter decided to change her X account from public to private "to protect her safety," thereby halting any future earnings….
On May 18, 2023, The Daily Beast published an article written by news reporter AJ McDougall, entitled "Lawyer Roasted for Calling 911 on 'Unlicensed' Food Vendor in NYC Park" …. The Daily Beast Article partially embedded the Tweet but included a hyperlink to the full, original tweet and did not include the two photographs Plaintiff included in the original Tweet.
I have an opening for a research assistant at the Hoover Institution (Stanford) for a year starting June or thereabouts. This is a temporary position with a starting hourly rate of $23.59 (unfortunately, with no benefits, since it is classified as temporary). I'd be glad to have someone in the Stanford area who will come to the office in person, but I'd be open to someone working remotely as well.
The typical assignments will be reading cases and briefs, proofreading article drafts, finding and reviewing news articles and journal articles on various topics, cite-checking, tracking down court filings, investigating new technological developments (especially having to do with AI), and the like. My current RA graduated from Stanford last year and took the job for a gap year between college and law school. My sense is that she found the work interesting and of potential value for her future work in law school.
The start and end dates would ideally be June 1, 2026 to May 31, 2027 , but there is some flexibility on both ends. (Because of Stanford rules, I can't hire anyone for more than a year for this.) The job is limited to 980 hours until Dec. 16 or so and then 980 hours afterwards, so it's a titch less than full-time, especially if one starts June 1, but not by much.
If you know people who might find this interesting, please encourage them to apply here.
Over at The Dispatch, I have a new piece on the originalist case for birthright citizenship. President Donald Trump's executive order attempting to strip natural-born citizenship status from children born of undocumented aliens and temporary aliens is facing an uphill climb before the Supreme Court on April 1. The uncertainly about its fate is not whether the Court will strike down the executive order as unlawful but how many votes the White House might get from the justices. Will the loss be unanimous, or merely overwhelming? We'll know this summer.
Meanwhile, some scholars and activists have emerged to lend support to the administration's efforts. A small handful of scholars (including Trump favorite, John Eastman, and my own dissertation advisor, Rogers Smith) had developed a revisionist case on the history and constitutional theory of birthright citizenship many years ago. Since the executive order was issued, a small band of new advocates have joined that revisionist camp in defense of the administration's actions.
Because someone is wrong on the internet, I have been drawn back into debates that once occupied me in seminars in graduate school. The revisionist case is still wrong, and the conventional wisdom is still right. If one wants to defend the Trump executive order, one would be best served by arguing that the original meaning of the Fourteenth Amendment is not dispositive.
The original meaning of the "subject to the jurisdiction" clause of the Fourteenth Amendment is consistent with the principles of the centuries-old English and American common law that predated the adoption of that text. Children born of aliens within the borders of the United States and under American governing authority are natural-born American citizens. I have developed out the principle and logic of the ancient common-law rule in a recently published article, an amicus brief filed at the Supreme Court, and now in The Dispatch. I rather suspect that I'll be presenting additional evidence and arguments on this issue down the road.
The modern legal argument surrounding Trump's executive order turns on the meaning of the phrase "subject to the jurisdiction thereof" in the text of the 14th Amendment. The court last spoke on this issue at the end of the 19th century, declaring "the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms." The court then concluded that "subject to the jurisdiction thereof" was to be construed in light of the common law and American practice. It recognized three standard exceptions to the nativity rule: children born of foreign ambassadors, children born of alien enemies in hostile occupation, and children born as members of an Indian tribe that held itself apart as "an alien, though dependent, power."
. . . .
Historical revisionism is sometimes useful, but in this case it is simply wrong. [Lincoln's attorney general] Edward Bates pointed to the traditional rule and the traditional sources familiar to 19th century American lawyers in his opinion on citizenship early during the Civil War. James Kent, a New York jurist and one of the leading legal treatise writers of the early republic, had summarized the law simply as "all persons born within the jurisdiction of the United States" are native citizens. William Blackstone, the author of the treatise upon which Americans from the Revolution onward relied for their understanding of the English common law, likewise summarized, "Natural-born subjects are such as are born within the dominions of the crown of England." Blackstone restated this in more technical terms, explaining that "within the dominions" was synonymous with "within the ligeance" of the king. Being born within those circumstances created a mutual bond between king and subject, in which the subject owes the king allegiance and the king owes the subject protection. Once established, that bond was extraterritorial; a subject leaving the king's dominion still owed him allegiance and was still owed protection.
. . . . As Blackstone noted, "the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." Those children could not themselves be aliens, despite the status of their parents, because they were not "borne in a strange country under the obedience of a strange prince." Conversely, a statute was required in the United States, as it had been in England, to extend citizenship to children of Americans born abroad "in a strange country." By the operation of the common law and the Constitution alone, such children had been born outside the dominion, or the jurisdiction, and were thus aliens by birth regardless of the status of the parents.
With the Supreme Court set to hear oral argument on April 27th in United States v. Chatrie, the geofence warrant case, I'm pleased to be able to post The Carpenter Adjustment, which is Chapter 9 of my 2025 book, The Digital Fourth Amendment. In the chapter, I explain what I think Carpenter means, the moves it is making, and how I think courts should interpret it. You can read the chapter here.
Here's the chapter summary:
The chapter considers how courts should interpret Carpenter v. United States (2018), the Supreme Court's blockbuster ruling that cell-site location records are protected under the Fourth Amendment. Carpenter is the Supreme Court's equilibrium-adjustment for noncontent network information: it recognizes that some network metadata is new and that the translation from physical space to network environments should treat some metadata differently. The question is, Which Internet data qualifies? This chapter develops a three-part test to apply Carpenter to Internet information. It then applies the test to a few important types of Internet information, such as Internet protocol addresses, geofence warrants, trip information, and Google search terms.
Ideally one would read this chapter in the context of the entire book, but I think this 20-page chapter stands on its own relatively well.
From his Free Press article; Ferguson is a Senior Fellow at the Hoover Institution, a former Harvard history professor, and a noted author both on historical matters and modern ones:
Since the news of the joint U.S.-Israeli strikes on Iran this morning, I have been thinking a lot about a song in the 2004 movie Team America:World Police. The movie was co-written by the creators of South Park and follows a group of heroic American puppets waging kinetic war on Islamic terrorists, the North Korean dictator Kim Jong Il, and liberal Hollywood, leaving cataclysmic collateral damage (the Eiffel Tower, Cairo, the Sphinx) in their wake. But the real highlight is a song called "America, Fuck Yeah." Here's how it goes:
America, fuck yeah
Comin' again to save the motherfuckin' day, yeah
America, fuck yeah
Freedom is the only way, yeah
Terrorists, your game is through
'Cause now you have to answer to …
America, fuck yeah
So lick my butt and suck on my balls
America, fuck yeah
What you gonna do when we come for you now?
It's the dream that we all share
It's the hope for tomorrow
Fuck yeah
Team America was an ambivalent movie at the time. That was what made it funny. It simultaneously mocked the liberal opponents of an aggressive foreign policy and the neoconservatives who advocated policies such as regime change in Iraq. The South Park team understood before many commentators that the United States has a track record of coming to save the day and leaving a trail of devastation.
For the habitual critics of U.S. foreign policy in general and Donald Trump's in particular, the analogy between today's air raids against Iran and the invasion of Iraq nearly 23 years ago is too obvious to be resisted….
An excerpt from Prof. Goldsmith's post at Executive Functions:
We're already seeing a debate about the legality of President Trump's use of force in Iran. I've grown cynical about these debates. Law is the language we use when criticizing presidential war powers—and it has been since the beginning of the nation. But the truth is that there are only political constraints.
As I've been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people. They have occasionally risen up to constrain the president's deployment of troops and uses of force—for example, in Vietnam, and in Lebanon in 1983, and in Somalia in 1993. But those actions are rare and tend only to happen once there is disaster.
The Office of Legal Counsel opinions on the presidential use of force are famously promiscuously permissive. Some will now invoke the single acknowledged OLC limitation on unilateral uses of force to criticize the Iran attack. As the opinion justifying the attack on ISIS in 2014 explained: If the "'anticipated nature, scope, and duration' of the planned military operations, analyzed in light of the applicable historical precedent" amount to "war," the president must secure prior congressional approval.
President Trump in his statement about the attack said: "The lives of courageous American heroes may be lost, and we may have casualties," and that "that often happens in war." Does that implicate the OLC limitation and require him to seek congressional approval? It would be very easy for OLC to conclude not.
Frame grab from an eight minute statement made by United States President Donald J Trump that was released via his X account concerning the United States attack on Iran, on Saturday, February 28, 2026. (@realDonaldTrump via CNP/Newscom)
Last night, the US and Israel initiated a large-scale military attack on Iran. This action is blatantly unconstitutional. Its wisdom and morality are more debatable.
Article I of the Constitution gives Congress the exclusive power to declare war. One can debate the extent to which presidents can initiate relatively small-scale military actions, and such debates have raged for decades. But this attack is very obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. And Trump didn't get any, and indeed did not even try to do so.
Don't take my word for the proposition that it's a war. Take Trump's! He himself has called it a war, and proclaimed that the objective is regime change.
The closest historical analogue is Barack Obama's 2011 air campaign against Libya, which was also an attempt at regime change carried out with air strikes. For those keeping score, I condemned Obama's action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Iran is a larger and more powerful nation than Libya, and thus this is likely to be an even bigger conflict. And, as I have said before, Obama's illegal actions don't justify Trump's (and vice versa).
The wisdom and morality of this action are a closer call. I am no reflexive opponent of military intervention, and I think regime change is sometimes justified. I have long differed on these issues with more dovish/isolationist libertarians.
The Iranian regime is a brutally oppressive dictatorship that recently slaughtered tens of thousands of protesters, has a long history of promoting terrorism, and constantly seeks to develop nuclear weapons. For these and other reasons, I would welcome regime change there. Even if the new government is far from ideal, it is likely to be less awful than regime of the ayatollahs. But I am skeptical that regime change can be achieved with air and missile strikes alone. And, at this point, it does not seem like the US and Israel have either the will or the capability of launching a major ground invasion. If the latter is attempted, it might turn out to be too costly to be worth it.
Perhaps airpower could achieve regime changes if coupled with a strong opposition movement within Iran. But Trump waited until after the regime crushed the protests that arose a few weeks ago, in the process slaughtering tens of thousands. It may be difficult or impossible for a strong opposition movement to emerge again, without a ground attack.
War is inherently dynamic, and it would be foolish to make definitive predictions. I have been largely out of the field of security studies for many years now, and thus no longer have much relevant up-to-date expertise. Thus, at this point, I can only say I am skeptical this intervention will achieve the regime change Trump seeks, or any other beneficial result great enough to outweigh the damage done to our constitutional system.
That latter is not just a technical legal issue. 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 action have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents.
I will note one clear beneficial consequence of this action that has largely been ignored by the media so far: Iran is a major supplier of weapons to Russia for its war of aggression against Ukraine. As long as Iran is fighting the US and Israel, it is unlikely to continue extensive weapons deliveries to Russia, since it will need those arms for its own use.
But, on balance, it would have been more effective to help Ukraine by simply giving them weapons directly, which Trump has largely stopped doing. And, unlike starting a war without congressional authorization, giving arms to Ukraine doesn't violate the Constitution, and does not expose US forces to any significant risk.
In sum, this is a blatantly unconstitutional war. Time will tell whether it achieves any beneficial results that outweigh the costs - including the damage to our constitutional system of separation of powers.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Victory! This week, S.D. Iowa rejected a mayor and police chief's invocations of qualified immunity (and the Nuremberg defense) and handed a big win on the merits to our client, who was arrested, jailed, and criminally prosecuted for criticizing them. Good stuff. Click here to learn more.
New on the Short Circuit podcast: To fuel the nightmares of our lawyer listeners, a story of a settlement that was until it wasn't, powered by litigation financing.
After news reports indicate that ICE planned to request immigrants' addresses from the IRS to aid immigration enforcement, immigrant-rights groups sue to enjoin the information sharing. D.C. Circuit: But the statute that prohibits release of "taxpayer return information" exempts addresses. Injunction denied. Read More
Judge McCafferty refuses to stay her unconstitutional injunction, and it appears the state AG's office is still failing to raise its strongest constitutional defense.
Last month, a federal judge in New Hampshire issued an injunction purporting to prevent the state from ending its vehicle emission inspection program. The state legislature had repealed the program, effective January 31. No matter, the Judge McCafferty concluded, the state is required to have such a program under the federal Clean Air Act, so the state was enjoined from getting rid of the program.
As I explained in this post, the judge's injunction is unconstitutional, as it forces the state to implement a regulatory program. The judge claimed this outcome was required by the Clean Air Act, but it is well-established, black-letter law that federal law may not require a state to administer or implement a regulatory program. Any such requirement is commandeering, and is unconstitutional under a line of Supreme Court decisions going back over thirty years, including New York v. U.S., Printz v. U.S., and Murphy v. NCAA.
[Indeed, the history goes back farther, as the U.S. Environmental Protection Agency had taken the position in the 1970s that states could be required to implement vehicle emission inspection programs under the Clean Air Act, only for the Solicitor General to concede the point to the Supreme Court, prompting the dismissal of EPA v. Brown. I have a paper retelling this saga, unearthing some of the anti-commandeering principle's forgotten history, that I hope to post on SSRN later this year.]
Given the history, and well-established nature of the anti-commandeering principle, I was surprised to read the judge's order. I was even more surprised to discover that the state AG's office had not raised the anti-commandeering principle in the state's defense. Now I am more surprised still, as this past Wednesday the judge denied the state's motion for a stay, again without any mention of commandeering concerns (and, based on her opinion, it appears the state again failed to raise the argument).
The problem, again, is that Judge McCafferty seems not to understand the nature of our federal system, or the particular requirements of the Clean Air Act. "The Clean Air Act requires New Hampshire's SIP to contain an I/M program," she writes in her latest order. That is true, as far as it goes, in that a state that fails to adopt an adequate SIP [State Implementation Plan], or fails to maintain a SIP approved by the EPA (as is the case here), is out of compliance with the Act. But this does not mean that federal law requires New Hampshire or any other state to have such a program. Rather, should a state fail to submit, maintain, or enforce a compliant SIP, federal aw provides that the state can be subject to various sanctions, such as the loss of some federal funding and the direct imposition of a FIP [Federal Implementation Plan]. What the Clean Air Act does not do is provide a basis for forcing a state to adopt any particular regulatory measure--a point which the federal government has accepted for the past fifty years. [For more on what is and is not commandeering or otherwise coercive under the Clean Air Act, see this article I wrote a few years back with Nate Stewart.]
The Clean Air Act operates this way, in part, so as not to commandeer state governments. Under New York v. United States, it is perfectly okay for the federal government to offer inducements for state cooperation, as well as to threaten adverse consequences for state intransigence. But what federal law cannot do is simply direct states to play the federal government's tune--and yet that is precisely what Judge McCafferty has done. And if there were any question on this point, recall that in Murphy v. NCAA the Supreme Court made abundantly clear that the anti-commandeering principle prevents the federal government from ordering a state not to repeal a state law.
The underlying legal question in this litigation is not a particularly close one. Yet for some reason the state AG's office did not press the point. This has not escaped the notice of other New Hampshire officials, so perhaps things will change on appeal. Until then, the unconstitutional commandeering of New Hampshire will apparently continue.
The draft of "Birthright Citizenship Re-Examined" is available on SSRN. Here is the abstract:
In 2020, I argued in Originalism and Birthright Citizenship that the original meaning of the Fourteenth Amendment's Citizenship Clause guaranteed U.S. citizenship to almost everyone born in the United States apart from the children of foreign diplomats and (at the time it was adopted) tribal Native Americans. President Trump's 2025 executive order purporting to exclude from birthright citizenship the U.S.-born children of temporary visitors and of persons not lawfully present in the United States has brought the issue to the forefront and inspired prominent originalist counterarguments. In particular, two leading originalist-oriented scholars—Kurt Lash and Ilan Wurman—separately argue that the original meaning's citizenship guarantee is narrower than I contended.
This Article responds to these new originalist assessments of the Citizenship Clause. Notably, although these scholars both reject the broadest reading of the Citizenship Clause, they disagree between themselves as to the clause's correct reading and scope. Professor Lash's account would exclude U.S.-born children of parents unlawfully present in the United States (thus defending the executive order only in part). Professor Wurman argues that the clause may guarantee citizenship to U.S.-born children of alien parents only if the parents are lawful permanent residents; this approach would find the President's executive order consistent with the clause's original meaning.
Evaluating each of these contentions in turn, this Article concludes that neither of them is persuasive. Rather, this Article reaffirms the conclusion that the Citizenship Clause's broad language ("All persons born… in the United States and subject to the jurisdiction thereof, are citizens of the United States….") encompasses all U.S.-born persons over whom the United States exercised sovereign authority at birth.
This article, like other recent work, adds to the ongoing debate about the precise scope of the Fourteenth Amendment's citizenship clause.
I continue to believe the arguments for the conventional account are more compelling than the revisionist accounts that would undermine the scope of birthright citizenship, particularly if one believes the question should be answered by the original public meaning of the clause, as opposed to a living constitutionalist theory. I also believe the question that is most up for debate is not the operation of the clause itself, but the extent to which Congress may adjust the contours of birthright citizenship by using its Section Five power to define or redefine what it means to be subject to the jurisdiction of the United States. Yet because Congress has made no effort to enact such legislation, that is not a question that bears on the proper resolution of Barbara v. Trump, the case the Supreme Court will consider this spring. It is rather a question for another day.
On Wednesday, I participated in the Rappaport Forum at Harvard Law School on "The Docket that Shall Not Be Named" with Professor Kate Shaw. The discussion was moderated by Professor Richard Re.
As regular readers would expect, I sought to put discussion of the Supreme Court's "shadow docket" into perspective and explain why I believe it is premature to draw conclusions about what the pattern of recent decisions regarding requests for interim relief says about the Court, the Court's relationship to the executive branch, or even the Court's relationship with the second Trump Administration.
I was supposed to be participating in person. Alas, the weather and the airlines did not accommodate. So while I had to participate Oz-style, as a disembodied head on the wall, I believe we had a worthwhile discussion. Video below.
[1.] Some states and municipalities ban public nudity generally, but some, like Washington, ban only nudity that is "lascivious," which is to say involving some sexual motivation (to oversimplify somewhat).
Does the First Amendment permit such bans when applied to expressive nudity? You can read the badly fractured decision of the Court in Barnes v. Glen Threatre, Inc. (1991) for yourselves and figure out what it means as a precedent. Five Justices voted to uphold a total ban on public nudity, even as to places where only consenting adults are present (such as strip clubs). But Justice Souter, whose vote was necessary to that result, stressed that nude dancing could be banned to prevent "secondary effects" such as "prostitution, sexual assault, and other criminal activity." It's not clear then how that holding would apply to cases where the nudity is not sexual and is unlikely to yield such effects.
[2.] Nudity and recalls of elected officials, together! Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of "some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office," and courts can reject recall grounds if they don't adequately allege such misconduct.
It's not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it's also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official's actions fit within the category of "high crimes and misdemeanors." Different states have different rules on the subject (see this 2021 post).
[3.] With that in mind, here are the facts from In the Matter of Recall of Lauser, decided yesterday by the Washington Supreme Court (majority opinion by Justice Charles Johnson):
