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Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Contempt Judgment From Missouri
The Secretary of State was subject to dueling injunctions from state and federal court. It was a lose-lose.
The wild ride in Missouri continues. Around the same time that the United States Supreme Court stayed Judge Clark's ruling, the Missouri Supreme Court held an emergency hearing about whether Secretary of State Denny Hoskins should be held in contempt. By that time, because Judge Clark's ruling was stayed by the Supreme Court, Hoskins was no longer subject to dueling injunctions, and thus agreed to enforce the 2022 maps. Ultimately, the court ruled that Hoskins "purged himself" of contempt, and therefore imposed no punishment.
Yet, for a period of about 16 hours, the Secretary of State was subject to two sets of injunctions. The Missouri Supreme Court ordered him to use the 2022 maps. And the U.S. District Court for the Eastern District of Missouri ordered him to use the 2026 maps. Which of these two courts prevails? Neither. They are both courts of competent jurisdiction that issued binding orders. One is not higher than the other. Indeed, conflicting rulings from the Missouri Supreme Court and the Eighth Circuit would present the same issue. Hoskins, if push came to shove, would have to choose which judgment he wishes to comply with. But that choice entails costs. If he complied with the state court ruling, Judge Clark could have held him in contempt. If he complied with the federal court ruling, the Missouri Supreme Court could have held him contempt.
Under these very unusual circumstances, the Supreme Court in the span of 48 hours declined to disturb the state court ruling and stayed the federal court ruling, so Hoskins got some definitive guidance from up to. But in the normal course, these sorts of dueling injunctions would co-exist for days, weeks, or even longer.
This sort of dynamic played out in Alabama during the same-sex marriage litigation. State probate judges who issued our marriage licenses were subject to conflicting orders from a federal judge in Mobile and the Alabama Supreme Court. Ultimately, Obergefell settled the matter, but in the interim, the state probate judges had to pick which court might threaten them with contempt.
Howard Wasserman and I explained the dynamics in our 2016 article:
While the days immediately following Obergefell were marked by scattered attempts by some probate judges to avoid issuing licenses to same-sex couples or to avoid issuing licenses at all, the now effective class injunction quickly ended those efforts by ensuring compliance without need for that additional step. A couple denied a license by a probate judge would not have to initiate a new lawsuit or obtain a new injunction. They instead could go directly to [Federal] Judge Granade for an order enforcing the existing injunction, with no further constitutional analysis required. The court would promptly order the probate judge to issue licenses under the terms of the injunction, with failure to comply sanctioned by civil contempt.
The Missouri Supreme Court probably should have waited until the Supreme Court ruled before it set oral argument for contempt proceedings. I hope cooler heads prevail in the Show-Me state. Things are a bit too hot right now.
Marijuana Contracts Are Not Enforceable in Federal Court
Just because marijuana is legal under state law does not mean marijuana is legal -- a useful reminder.
Two-dozen states have legalized the adult possession of marijuana under state law. Many more have legalized the possession and use of marijuana for medicinal purposes. Yet marijuana distribution and possession remain illegal under federal law.
The federal government may not devote significant resources toward enforcing federal marijuana prohibition, but the fact that marijuana is illegal under federal law can still have meaningful consequences (though fewer for gun owners than before, thanks to the Supreme Court's decision in United States v. Hemani).
A case in point that federal marijuana prohibition can have legal significance is today's decision by the U.S. Court of Appeals for the Sixth Circuit in Hello Farms Marketing MI v. GR Vending MI, holding that a marijuana contract is unenforceable in federal court given the illegal subject matter and throwing out a contrary district court ruling.
Judge Nalbandian summarizes the case in his opinion for the court:
Hello Farms, a Michigan marijuana grower, entered a contract to supply marijuana to Defendants GR Vending and CURA MI. When GR Vending breached, Hello Farms sued. And a jury awarded Hello Farms $31.8 million. Defendants argue that because the contract was illegal under federal law, the district court erred by not granting them judgment as a matter of law on their illegality defense.
When the parties contracted, federal law made the growth, distribution, and possession of marijuana a crime. Michigan, like many other states, made it a business. But despite the legalization of marijuana in Michigan, federal courts cannot enforce agreements to commit federal crimes. We reverse
This case underscores a point I have tried to make in my work on this subject (including in my book Marijuana Federalism: Uncle Sam and Mary Jane): If we want to have real marijuana federalism, in which states can experiment productively with different approaches to marijuana, it is not enough for the federal government to do nothing. It must make state experimentation legal, such as by ending the criminalization of conduct that is legal under applicable state law (while continuing to prohibit conduct that is illegal under applicable state law, including interstate trafficking in violation of the such laws). This was the federal government's approach to alcohol at the end of prohibition, and it is the only way to have a marijuana federalism that is free of the distorting effects of federal prohibition.
Why Postliberalism Failed--And Is Likely to Fail Again
Contemporary postliberalism may be a fitting ideology for the age—but that hardly makes its agenda a good one, let alone an American one.
Today Civitas Outlook published a mini-symposium responding to the new book, Why Postliberalism Failed by James Patterson and Thomas Howes. Contributors include Richard Reinsch, David Schaefer. and yours truly.
My own contribution to the symposium, "The Pre-History of Postliberalism," explains how the postliberal critique of the American political tradition and American conservatism is not new, nor are the theoretical claims upon which it relies. As Patterson and Howes point out, the underlying ideas have been deployed before--and to quite ill effect--in other countries. As I add, these ideas have had adherents on the American right before, and they should be no more convincing today than they were then.
From my essay:
A conservative disposition is rarely conducive to contentment with contemporary politics. The existing order is always threatened by chaos and decay. So it is understandable why some may find the postliberal critique engaging, and perhaps even refreshingly transgressive. Yet aside from the political moment in which it is put forth, there is little in this critique of classical liberalism, the fusionist consensus, or the American project which is particularly new. Whether recognized by its adherents or not, the postliberal indictment rehashes arguments and propositions made many times before and proposes a model of governance that has never delivered the moral state its proponents claim it seeks. This ground is well-trod, but not to good effect.
In Why Postliberalism Failed, James M. Patterson and Thomas D. Howes usefully dissect and expose the postliberal project, particularly as it has manifested itself within the Catholic political tradition, including Catholic integralism. The result is an ideology less concerned with the preservation of traditional religious communities than with harnessing "a powerful, centralized government imposing from the top down a theologically-informed vision of the public good on all national subjects regardless of their faith." It is, Patterson and Howes note, "authoritarianism dressed up in Catholic vestments."
Perhaps most valuably, they show how the ideas embraced by postliberal thinkers are not new, have been tried before, and have ended in failure. There were multiple, Catholic-oriented postliberal regimes in the twentieth century, and all were nasty, brutish, and short. None yielded a sustainable or workable—let alone desirable—polity. Whether in Portugal, Brazil, Argentina, Austria, Slovakia, or Vichy France, Catholic-aligned postliberal regimes all ended in failure, often leaving oppression, misery, and death in their wakes. . . .
Much of the postliberal indictment of American conservatism—if not the tactical agenda—echoes arguments debated within the conservative movement in the late 1960s and early 1970s, largely (but not exclusively) at the Philadelphia Society and in the pages of National Review. . . .
America is fortunate that advocates of postliberalism failed to find a following here. While some sought to import a reactionary European conservatism to these shores, they failed to dislodge the fusionist consensus that has defined the American conservative movement since World War II—a consensus committed to individual liberty and traditional morality within a constitutional order that limits and decentralizes government power. . . .
My essay concludes:
As Archbishop Salvatore Joseph Cordileone notes in his foreword to Why Postliberalism Fails, "A fantasized idealism of the past that would reassert such ideas is not a sign of originality, but of historical amnesia." In that regard, contemporary postliberalism is perhaps a fitting ideology for the age—but that hardly makes its agenda a good one, let alone an American one.
All three contributions may be found here.
Geof Stone and I on "The State of Free Speech in 2026" (from the National Constitution Center)
I much enjoyed participating in this, and I expect many of our readers will much enjoy listening to it.
First Circuit Refuses to Stay District Court Injunction Against Trump's Executive Order on Mail-In Voting
The Court rightly ruled the executive branch has no authority to restrict mail-in voting.
I recently wrote about how Donald Trump's executive order seeking to curb mail-in voting is an attack on federalism and separation of powers. The Constitution gives states primary authority over election administration, subject to potential modification by congressional legislation. Today, in League of Women Voters v. Trump, a unanimous panel of the US Court of Appeals for the First Circuit rejected the Trump Administration's motion to stay the trial court injunction blocking implementation of the US Postal Service rule implementing Trump's order. Here is a key excerpt from the ruling:
Appellants have not demonstrated entitlement to a stay. Most prominently, appellants
have not made a strong showing that the district court erred in determining that the Final Rule is likely unlawful. The district court concluded, and we agree, that the Final Rule is likely a regulation of the manner of holding elections for members of Congress, which the Elections Clause of the Constitution assigns to the States and Congress, and not to an executive agency, such as the Postal Service, acting without congressional authorization.2 See U.S. Const. art. I, § 4, cl. Appellants seek to avoid the constitutional problem by denying that the Final Rule regulates the manner of holding elections. The district court charitably concluded that "[t]his denial rings hollow." League of Women Voters of Mass. v. Trump, Nos. 26-cv-11549, 26-cv-13917, 2026 WL 2620871, at *14 (D. Mass. Sep. 4, 2026). The title of the Final Rule is "Ballot Mail for Federal Elections," and the Final Rule explicitly and exclusively regulates election mail. 91 Fed. Reg. at 54966, 54990-92. It requires action by the States' "chief election official[s]" and its policy justification is "protect[ing] the integrity of federal elections…."To the extent that appellants argue that we should read statutes authorizing the Postal
Service to issue general postal regulations as supplying the necessary congressional authorization for the Final Rule, see 39 U.S.C. § 401(2) (authorizing USPS to make "such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions"); id. § 401(10) (authorizing USPS to exercise "all other powers incidental, necessary, or appropriate to the carrying on of its functions or the exercise of its specific powers"); id. § 404(a)(1) (conferring on USPS the power "to provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail, and for the disposition of undeliverable mail"), their argument likely fails. Appellants have not convinced us that it is likely that Congress would delegate constitutionally assigned tasks relevant to maintaining our electoral system to the Postal Service through the "wafer-thin reed" of a general grant of authority to manage the postal system. Biden v. Nebraska, 600 U.S. 477, 499 (2023). As appellees point out, Congress historically has been explicit in its exercise of authority under the Elections Clause when it seeks to displace the background assumption that the States will act as the primary regulator of elections. The general authority on which appellants rely here is far removed from that sort of specific congressional action.
I think this is exactly right. And it's notable the court cited the major questions doctrine case of Biden v. Nebraska, which rightly rejected President Biden's effort to use vague statutory language as a tool for forgiving hundreds of billions of dollars in federal student loan debt. As explained in my earlier post on this issue, and by the district court, Trump's claim to be able to use the Postal Service authorization law to leverage massive changes in state mail-in ballot rules also creates a major questions issue, as control over rules for tens of millions of ballots is clearly an issue of vast political significance and (in the words of Chief Justice John Roberts in the recent Learning Resources tariff case) a "highly consequential power."
When the executive claims Congress has delegated it such a vast power, the major questions doctrine requires proof that the delegation is clearly stated in the relevant statute. Here, there is nothing like that.
Trump has also asked the Supreme Court to stay the district court ruling, and that court will have the final say, if it wants it. Hopefully, the justices will recognize that the district court and the First Circuit got this issue right.
While recent events have led me and some other scholars (e.g. - prominent election law specialist Rick Hasen) to take a more favorable view of election-law federalism, there are still plausible arguments for increasing federal control over some aspects of election administration. But any such increase must be properly enacted by Congress, not unilaterally imposed by the executive. There are good reasons for the Constitution's rejection of the idea that any one person should have sweeping power to alter electoral rules - especially so close to the date of a major federal election.
Journal of Free Speech Law: "Regulating LGBTQ Speech in the Classroom," by Caroline Mala Corbin
Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.
The article is here; the Introduction:
Public school teachers have found themselves in a free speech vise. Their speech has become more regulated than ever by both the left and right. In particular, public school teachers across the country have found their speech relating to LGBTQ students and issues tightly regulated by government-mandated speech codes. In left-leaning states, some religious teachers have objected to schools forcing them to address their transgender and nonbinary students by their preferred names and pronouns under anti-discrimination policies. In right-leaning states, teachers have objected to the silencing of any discussion around LGBTQ issues under "Don't Say Gay" laws. In both cases, the government seeks to regulate the content of the teachers' speech, an action which would, in other circumstances, raise serious First Amendment questions. Does this level of control over what public school teachers may say in their classrooms violate the Free Speech Clause? Should it?
Under existing free speech jurisprudence, anything that teachers say while discharging their job responsibilities is not protected by the Free Speech Clause. When teachers speak "pursuant to their official duties," like classroom instruction, they are deemed to be speaking as the government and not as a private citizen. This classification as government speech is significant because the Free Speech Clause protects private speech from the government, not government speech from itself. In fact, the relatively new government speech doctrine declares that the Free Speech Clause does not cover government speech.
This essay argues that the fundamental problem with the government employee speech doctrine is that it mistakenly assumes that the Free Speech Clause protects only speakers and not audiences. After all, the premise of denying any free speech protection to public employees speaking pursuant to their official duties is that the government, rather than a private person, is the real speaker. But the Free Speech Clause cares as much about ensuring an unimpeded stream of speech for audiences as it does about ensuring that speakers have the freedom to speak their mind. Prior cases involving government employee speech astutely recognized that the Free Speech Clause protected audiences as well as speakers; indeed, it trained its sights on protecting audiences rather than speakers. Unfortunately, this insight has been lost in the abrupt adoption of the government speech doctrine.
Principal's Threatening Critics with Defamation Lawsuit Can Be "Conduct Unbecoming"
Govern yourself accordingly.
A short excerpt from the long decision by Merit Systems Protection Board Administrative Judge Scott Borrowman, in Bosworth v. Dep't of Defense. The decision upheld plaintiff's removal from her job; though there were many further matters involved besides the threat of a lawsuit, I'm focusing on the discussion of the lawsuit threat here:
Starting in August 2023, appellant began serving as the Principal at Matthew C. Perry Primary School (MCPPS), in Iwakuni, Japan…. MCPPS is [the pre-K through second grade elementary school in] the educational complex at Marine Corps Air Station Iwakuni..
[E]ach installation has an Interactive Customer Evaluation (ICE) system that allows comments to be routed to the appropriate office, such as comments related to DoDEA [Department of Defense Education Activity], to medical services, or to other base services….
Between August 2024 and June 2025, there were 83 ICE comments about MCPPS. Two comments submitted in May 2025 accused the appellant of treating some students differently because of their race, and one accused the appellant's children of bragging that they had their grades adjusted because "teachers are afraid of their mom."
On May 28, 2025, at 4:12 a.m., the appellant sent an email to [Community Superintendent Sonya] Gates [appellant's supervisor] and [District Superintendent] Jacqueline Ferguson [appellant's grandsupervisor] with the following text:
These ICE comments have truly affected my mental health. I already exposed that I have a VA disability rating of 80% due to PTSD [posttraumatic stress disorder]/Anxiety. This is cyber bullying and harassment, and nothing has been done to stop it. Instead, I am under investigation for ridiculously false allegations from a substitute, who is still employed at my school! I have endured these harassing comments for months, yet nothing has been done to alleviate my duress. Please assist in explaining my concerns.
A Remarkable 48 Hours In Missouri
Justice Kavanaugh rules against Missouri twice, likely without even reading all the papers.
The fight in Missouri has had a surreal 48 hours. Here is a grossly compressed summary.
First, the Missouri Supreme Court ruled that the state must use the 2022 congressional maps. The state court ruled that the 2026 maps were effectively a legal nullity because about 3% of voters in the state put the validity of the 2026 maps on the ballot for a referendum.
Second, Missouri filed an emergency application for a stay on September 4. Circuit Justice Kavanaugh set a response for September 7. Shortly after midnight on September 8, Missouri filed its reply brief. Around 4:30 PM, Circuit Justice Kavanaugh denied Missouri's application in chambers. I suppose there was enough time for Kavanaugh to read all the briefing, but I am skeptical. There was no noted dissent.
Third, a few minutes after Kavanaugh ruled, Judge Clark in the Eastern District of Missouri enjoined the use of the 2022 maps. This case was brought by Missouri voters and candidates for office. Later that day, an Eighth Circuit panel declined to grant a stay of the district court's injunction.
Fourth, in the evening of September 9, the group that supported the ballot referendum field an emergency application to stay the District Court's ruling. Circuit Justice Kavanaugh set the response for 10:00 A.M. on September 10--that deadline was about 16 hours away. Over that ensuing period, Missouri filed a 51-page opposition, the representatives and voters filed a 50-page brief, and the Solicitor General filed an 18-page brief. Around 10:30 A.M., less than 30 minutes after those briefs were filed, the application was granted without any noted dissents.
Application (26A326) for stay presented to Justice Kavanaugh and by him referred to the Court is granted.
This 48 hours sequence is remarkable. A case went to the Supreme Court twice with full briefing, and Missouri lost both cases. While the first application was denied in chambers, the second application was referred to the Court. Needless to say, none of the Justices read any of the reply briefs in the federal case. I suspect that Justice Kavanaugh discussed the matter with all of his colleagues at a informal conference Wednesday evening, even if by email. The order was baked. I suppose it was nice to at least let Missouri reply, but frankly a lot of hours were wasted. If the Court was going to grant the stay, why bother going through the motions?
Here is my tentative take. I think Justice Kavanaugh clearly accepted the AISG arguments that the referendum group raised. (The Amars discussed these points on SCOTUSBlog.) On the merits, it is extremely problematic if a tiny percentage of voters in a state (3%) can get a free two-year pass on any map. I've seen many reports that the majority of the Missouri Supreme Court are appointed by a Republican Governor, but remember Missouri is the home of the Missouri plan. This is not a conservative court. Alas, state courts get to interpret their own constitutions.
Then, when Judge Clark issued his injunction, Justice Kavanaugh saw an attempt to circumvent his ruling. It is true that the facts were different in the federal case. The "unclean hands" argument was not present, and the AISG issue as gone. But the underlying premise was the same: an attempt of a federal court to depart from a state supreme court's reading of a state constitution. Did Justices Thomas and Alito agree? Who knows. They did not signal their dissent. They may not have thought this fight was worth it, especially if Justice Kavanaugh was indignant. They might be saving their energy for another case.
There is another takeaway. The speed at which this all happened suggests the Justices are capable of holding emergency conferences for interim docket cases. Justice Kagan recently complained that there was no opportunity to discuss a case prior to ruling. I discussed this in my SCOTUSBlog post on empowering the minority:
A common criticism of the emergency docket is that complicated cases are decided without fulsome deliberations. The justices usually don't hold oral argument on emergency cases. Indeed, they may not even hold private conferences to discuss the outcome. In 2025's Department of State v. AIDS Vaccine Advocacy Coalition, Kagan dissented from an emergency docket order. She wrote, "Per usual on our emergency docket, we have had to consider this application on a short fuse—less than three weeks." Kagan added, "We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference."
At the time I asked why the court couldn't schedule emergency docket conferences. I wrote that "Roberts could convene a conference on short notice," but failed to do so, even as three of his colleagues demanded one. As things stand now, we can only surmise that the justices decided the entire matter over email or through the circulation of memos. Indeed, we learned from the leak of the "shadow papers" that the Supreme Court resolved the Clean Power Plan case in 2016 entirely through memos. This is no way to resolve questions affecting the national interest.
There was certainly a conference here, and it moved with speed.
"The Emergency Presidency at Twenty-Five"
A very interesting article by my colleague Prof. Michael McConnell (Stanford Law, Hoover) in the City Journal; in addition to being a leading scholar of the Religion Clauses and constitutional law generally, Michael has written extensively on Presidential power. Here are the opening paragraphs, though the whole article is much worth reading:
Twenty-five years ago, we suffered the most devastating attack on U.S. soil since Pearl Harbor. Ratcheting up the shock from the death and destruction at the heart of Manhattan was uncertainty about the future: When might the terrorists strike again? Three days after the attack, President George W. Bush visited Ground Zero and delivered, impromptu, some of the most stirring words any president has spoken. Climbing atop a pile of rubble with a megaphone in hand, he was interrupted by voices in the crowd, complaining that they could not hear him. "I can hear you!" Bush responded. "I can hear you, the rest of the world hears you, and the people who knocked these buildings down will hear all of us soon." Loud chants of "U.S.A., U.S.A.," ensued.
That same day, the president declared a national emergency. The attacks, he explained in Proclamation 7463, and the "continuing and immediate threat of further attacks," required the government to activate extraordinary powers, effectively putting the nation on a wartime footing. The directive would lead to far-reaching changes to the national security apparatus, to domestic surveillance practices, to immigration and travel policies—and to a string of wars that seems never to end.
Bush's statement that the dangers were "continuing" as well as "immediate" proved more prescient than he could have known. We live in the shadow of the 9/11 emergency a quarter of a century later. Every president since Bush has extended the emergency declared that day. The extraordinary powers that the nation's 43rd president invoked on September 14, 2001, have become ordinary.
The effect is to concentrate power in the hands of one person, the president of the United States. In one sense, this would be no surprise to the Framers of the U.S. Constitution. They created a single executive in part because the contingencies of public affairs demand what Alexander Hamilton called "decision, activity, secrecy, and dispatch"—features characteristic of a one-person executive but inherently lacking in a numerous legislative assembly. Hamilton further pointed out that "energy in the executive … is essential to the protection of the community against foreign attacks."
Yet the Constitution contains no emergency clause. An emergency may provide occasion for the exercise of powers that are latent in ordinary times, but it does not create new constitutional powers. This, too, was deliberate. As Justice Robert Jackson wrote during the Korean War, the Founders "knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies." …
Court Blocks Investigation of AI-Generated Video About Vermont Political Candidates Because Video Is Obviously "Ridiculous"
From Friday's decision by Judge William Sessions (D. Vt.) in Poitras v. Clark:
This case concerns a video that plaintiff Henry L. Poitras ("Poitras") posted on June 7, 2026, titled "Mark Helps Vermont Take Out the Trash." The subjects of the video include Representative Becca Balint and her "expected Republican challenger," Mark Coester. {The video includes a "realistic" depiction of Balint, as well as audio that "criticizes [her] New Jersey ties, her position on taxation and government spending, her agricultural policies, her autocratic tendencies, and other aspects of her personality and politics." In the video, Balint makes statements such as "straws are banned, and if those farmers don't like it, they can leave," before Coester comes to "stop her" and uses heavy machinery to drop her into a dumpster.} The video also features audio that criticizes Balint.
On June 12, 2026, the Vermont Attorney General's office ("AGO") served Poitras with a civil investigative demand ("CID") pursuant to Vermont's recently-enacted synthetic media law, 17 V.S.A. § 2032, asking him to answer certain questions about the video under oath….
Section 2032 provides:
Med School Didn't Violate Accuser's Title IX Rights by Imposing Only a 20-Month Suspension on Student Found Responsible for Sexual Assault
An excerpt from yesterday's decision by Judge Andrew Carter (S.D.N.Y.) in Roe v. Icahn School of Medicine at Mt. Sinai:
The [allegations in the Complaint] are assumed to be true for purposes of the Motion to Dismiss.
In Plaintiff Jane Roe's final semester as a medical student at the Icahn School of Medicine at Mount Sinai ("Defendant"), she reported that a male student, John Doe, had sexually assaulted her in a campus residence hall. After conducting an investigation, Defendant found John Doe responsible for sexual assault and imposed a 20-month suspension on him. Defendant's written determination of John Doe's responsibility found suspension to be the appropriate sanction "[b]ecause the assault did not involve forcible rape or penetration; occurred while the Respondent was under the influence of alcohol; and because there was no evidence presented to the panel of any similar or related acts when the Respondent was not inebriated," noting that suspension would grant John Doe the "opportunity to complete his medical training."
Plaintiff appealed Defendant's chosen sanction and challenged the factors which Defendant applied to come to its decision. In response, Defendant affirmed its prior decision.
Plaintiff sued under Title IX, and the court rejected her claim; some excerpts:
Today in Supreme Court History: September 10, 1949
9/10/1949: Justice Wiley Rutledge dies.
Open Thread
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Second Amendment Roundup: ATF's "Firearm" and "Frame or Receiver" Rules Invalid
Supreme Court’s VanDerStok decision didn’t resolve the vagueness and Second Amendment challenges.
The Supreme Court in Bondi v. VanDerStok (2025) rejected a challenge under the Administrative Procedure Act to a 2022 Final Rule by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) expanding the definitions of "firearm" and "frame or receiver." See my post here. However, the Court did not entertain the constitutional challenges brought by Defense Distributed. In a decision issued on August 17 in Defense Distributed v. Blanche, Judge Reed O'Connor of the Northern District of Texas declared the regulations unconstitutionally vague and violative of the Second Amendment.
In 1968, Congress defined "firearm" in the Gun Control Act to include "any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive" and "the frame or receiver of any such weapon." 18 U.S.C. § 921(a)(3). Contemporaneously, ATF's predecessor agency defined "frame or receiver" as "that part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." 33 F.R. 18558 (1968). There things stood until 2022 when the Biden ATF decided to reinvent the wheel by "improving" these longstanding definitions under the fake issue of "ghost guns."
Just quoting the Final Rule's definition for "frame or receiver," 27 C.F.R. § 478.12(c)(c), itself exposes the vagueness thereof. It includes "a partially complete, disassembled, or nonfunctional frame or receiver … that is designed to or may readily be completed, assembled, restored, or otherwise converted" into one, but not "a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material)." As the court notes, "when a hunk of metal or plastic" reaches that stage is "is left to the subjective determination of the ATF."
The Biden-era regulation further states that ATF "may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with [or otherwise made available to the purchaser or recipient of] the item or kit." But it does not say "exactly what set of materials ATF thinks are relevant to this inquiry."
In addition, the rule added a gloss to the definition of "firearm" as "a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive." 27 C.F.R. § 478.11 ("firearm").
The term "readily" is problematic enough when used in the statute – what "may readily be converted to expel a projectile" – but is hopelessly vague when used in the Final Rule. As the court states, "It is hard to see how 'readily' in the context of an already formed weapon and 'readily' in the context of a block of metal or plastic and a jig or template are synonymous."
The parties did not dispute that making or repairing firearms is protected by the Second Amendment. Under Bruen, the burden shifted to the government to demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation. But the historical analogues cited by the government failed to do so. A mere two states in the early republic required firearm barrels to be "proved" (tested) and stamped to certify their strength and safety. In Bruen, the Supreme Court doubted that "three colonial regulations could suffice to show a tradition of public-carry regulation." The "why" was to protect the user from harm in the form of an early consumer-protection theory, while the "why" of the Final Rule was to enable ATF to engage in fighting crime by tracing firearms and (in theory) prohibiting their acquisition by prohibited persons. The "how" of the proving laws was to inspect and mark a barrel and collect a fee, while the "how" of the modern regulation was to impose regulation of parts and raw material to make firearms. Similar reasons distinguished gunpowder storage rules at the Founding that protected the public from volatile explosives from today's rule meant for crime control.
Not only does the Final Rule lack historical analogues, the court found, it "contradicts the actual historical tradition of personal gunsmithing. Self-manufacture of firearms in America was common and indeed foundational to establishing our Nation." During the colonial, revolutionary, and early republic periods, Americans were admonished to make firearms in order to arm the population. The court cited Joseph Greenlee, "The American Tradition of Self-Made Arms," 54 St. Mary's L.J. 35 (2023).
Accordingly, the court declared that 27 C.F.R. § 478.11 and 27 C.F.R. § 478.12(c) are unconstitutional under the Second Amendment and the Due Process clause of the Fifth Amendment. The court further enjoined enforcement thereof against Defense Distributed, the Second Amendment Foundation (SAF), or any of SAF's current or future members, but only with respect to the products raised in the complaint -- M1911 80% Frames and the G80 Build Kit, Unfinished Receiver, and Grip Module. The practical effect is that the company may sell the items and SAF members may buy them without requiring them to be distributed as a firearm through a federal firearms licensee.
Defense Distributed could have a broader impact, particularly if affirmed and further exposited by the Fifth Circuit, by challenging courts to strictly construe terms like "readily," whether found in a regulation or the statutes. The vagueness of "readily" may be ameliorated somewhat by the requirement that the government must prove that a party "knew the weapon he possessed had the characteristics that brought it within the statutory definition…." Staples v. U.S. (1994).
Some of the "assault weapon" definitions include reference to parts that can be "readily" assembled into one. In a case I litigated years ago, it was decided that "the phrase 'may be readily assembled' does not provide sufficient information to enable a person of average intelligence to determine whether a particular combination of parts is within the ordinance's coverage." Peoples Rights Organization v. City of Columbus (6th Cir. 1998).
* * *
On September 4, President Trump granted a pardon to Navy veteran Patrick Tate Adamiak, who was serving a 20-year sentence after being convicted of violations of the National Firearms Act. The case involved cut-up machinegun parts and an inert, incomplete grenade launcher. He filed a cert petition arguing that the NFA's definitions of "machinegun" and "destructive device" each have multiple definitions, 26 U.S.C. §5845, but the indictment was defective for not alleging which specific definitions applied. The petition was denied on May 18.
Correcting an Obnoxious Mischaracterization
In the middle of an article that amounts to, among other things, a disgraceful apologia for the explosion in campus antisemitism, including violence, since October 7 (recharacterized as involving only commendable "Palestine solidarity") Professor Jonathan Feingold of BU Law School and Isaac Kamola of Trinity College write:
In this MAGA mythology, student anti-discrimination trainings, LGBTQ+ resource centers, fellowships supporting Black students, and diversity-focused initiatives are indistinguishable from--or more concerning than--the actual Nazis who chanted "Jews will not replace us" on the University of Virginia's campus in 2017.17
17 For one example of the assertion that contemporary diversity efforts are "perhaps more insidious" than white nationalist projects and antisemitic conspiracy theories, see David Bernstein, Three Bad Ideas About Race in America, 4 Am. J.L. & Liberty 121, 123 & n.9 (2024).
Here is what I actually wrote in the cited article.
The United States has made substantial progress toward achieving the goals of the civil rights movement. While American society is not there yet, it is much closer in 2024 than it was in 1954…
There are two ideological threats to further progress. The first, from the right, is a potential return to the notion of the United States as a "white man's" country. The potency of this threat is reflected in the increasingly popular "Great Replacement" theory. According to this theory, the powers-that-be are seeking to replace the United States' white population with members of minority groups. These purported usurpers are mostly drawn from post-1965 immigrants, including illegal immigrants, and their descendants.9 While this conspiracy theory is wrongheaded and dangerous, those who adopt it fortunately hold little sway in elite and academic circles.
The second ideological threat is various racialist theories adopted by academics associated with the ideological left. These theories have spread to become something close to mainstream in some progressive circles. There is no single accepted moniker for this ideology, but many associate it with "woke," "critical social justice," and "critical race" theories of race and race relations. This ideology is perhaps more insidious than its counterpoint on the right; it reflects views held by people who call themselves "anti-racists" and who hold a great deal more cultural sway, especially among the American elite and in the establishment, than do right-wing racists.
Whatever one calls the theories emanating from the left, their advocates share a rejection of the racial liberalism that underlay Brown and explicit pessimism about the future of race in the United States. These theories also implicitly adopt racial essentialism as a working assumption, despite acknowledging that race is in fact socially constructed. As we shall see, some who reject racial liberalism favor encouraging Americans, especially white Americans, to strongly identify with their race.
Now, that was all written in late 2023, and with the reelection of President Trump and VP Vance's open alliance with Groyper-light(?) Tucker Carlson and his friends, I'm not sure I would draw the same conclusions today about where the insidiousness lies.
That said, I didn't write anything like the supposed "assertion that contemporary diversity efforts are 'perhaps more insidious' than white nationalist projects and antisemitic conspiracy theories." In fact, I didn't say anything about "diversity efforts," at all, much less deem such efforts worse than "white nationalist projects."
Rather, I critiqued three particular views common on the racialist left:
- Socioeconomic disparities among racial and ethnic groups should presumptively be attributed to present-day racism, racial hierarchy, or institutions serving the white majority, rather than to the many other cultural, historical, demographic, and economic factors that can produce group differences.
- Racial groups are collective actors with shared interests.
- White racial consciousness should be encouraged.
And if you wanted to stretch things a bit, and suggest that if I am critiquing an ideology I must be critiquing the products of that ideology, it at least should go without saying that diversity efforts are not necessarily a product of, and certainly not exclusively a product of, the ideologies noted above.
Indeed, many are not. To take the concrete examples that the authors raise, "LGBTQ+ resource centers" have no direct relationship to modern leftist racialist ideology, and fellowships for black students at predominately white colleges have existed since at least 1918, when Grinnell College sponsored them in cooperation with philanthropist Julius Rosenwald.
Academics should be careful about mischaracterizing their colleagues, perhaps especially people they disagree with, but the fault here lies also with the BU Law Review. Law reviews have a lot of disadvantages, but one advantage is supposed to be that they are supposed to check what authors say against the sources they cite. This doesn't protect the reading public from authors that rely on poor sources, but at least it's something, and the law review failed that basic task.
No Bail Release for Tate Brothers, Detained While Extradition Matter Is Pending
From Magistrate Judge Lauren Louis's long opinion today in In the Matter of Extradition of Tate (S.D. Fla.):
On July 18, 2026, warrants issued for the provisional arrests of brothers Emory Andrew Tate III ("Emory") and Tristan Tate ("Tristan"). Respondents were arrested on the same day, outside of a Miami venue at which they were co-hosting a boxing event. Respondents were taken into custody pursuant to a provisional arrest complaint based on charges against them in the United Kingdom…. The United Kingdom seeks Respondents' extradition ….
The warrant and Complaint in Case No. 1:26-mj-03260 set forth allegations that Respondent Emory choked and raped two women in their homes in England at various times between 2015 and 2025. The warrant and Complaint in Case No. 1:26-mj-03259 set forth allegations that Respondent Tristan choked, raped, and otherwise physically assaulted a woman with whom he was in a long-term romantic relationship on multiple occasions…. Respondents seek release from detention on conditions of bond pending the resolution of [the] extradition proceedings…
Based on the arguments and evidence presented at the hearing, Respondents' primary argument for release posits that they have demonstrated a perfect track record of compliance with conditions of release imposed by the Romanian court system, contrary to the Government's argument that Respondence have the incentive and financial means to flee.
At the hearing, Respondents advanced evidence, including their own testimony, that what wealth they had has been seized by the Romanian government; and that to the extent the Government's evidence draws on their statements on social media regarding their extreme wealth, those statements are attributable to the characters they play online but are vastly exaggerated (or outright false). Emory Tate additionally advanced evidence that social media posts boasting about his willingness and ability to evade law enforcement are just the "hyperbole" that Respondents disseminate in their capacity as public-facing figures selling an image.
The Government has advanced substantial evidence contracting Respondents' evidence. As to wealth, the Government highlights Respondents' public-facing message that they "are self-proclaimed billionaires who say that they own high-end vehicles, private jets, and a custom $50-million-dollar superyacht and have unrestricted access to traditional funds, crypto currency, and bitcoin." The Government admitted evidence of Respondents holding themselves out as owning a "superyacht." The Government further adduced Respondents' history of depicting themselves to the public as individuals who live lives of fabulous wealth. In an audio recording promoting "The War Room," Respondent Emory explains how crucial it is for one to hide one's wealth.
Our New Federal Circuit Amicus Brief in the Section 122 Tariff Case
The brief explains why the Section 122 tariffs are illegal and run afoul of the major questions and nondelegation doctrines.
Today, the Cato Institute and I filed our amicus brief in the US Court of Appeals for the Federal Circuit, supporting the Liberty Justice Center and Oregon (leading a coalition of 24 states) cases against Trump's harmful and illegal Section 122 tariffs. Here is the summary from the Cato website:
In February 2026, the Supreme Court invalidated the massive tariffs that President Trump attempted to impose under the International Emergency Economic Powers Act (IEEPA). But that decision did not end Trump's efforts to unilaterally impose onerous tariffs. Now the President has invoked Section 122 of the Trade Act of 1974 to purportedly impose 10 percent tariffs on imports from almost all US trading partners.
Soon after these new tariffs were announced, two small businesses and a coalition of 24 state governments filed lawsuits in the US Court of International Trade (CIT) challenging their legality. In May, the CIT ruled that these new tariffs are illegal. Now the case has been appealed to the US Court of Appeals for the Federal Circuit.
Cato and Professor Ilya Somin, our B. Kenneth Simon Chair in Constitutional Studies, have filed an amicus brief supporting the CIT's decision; Somin previously served as co-counsel to the victorious plaintiffs in the IEEPA Supreme Court tariff case. We thank Daniel Wolff, Alexander Schaefer, and Joshua Claybourn of Crowell & Moring for assistance in drafting and filing the brief.
In our brief, we explain why this sweeping imposition of tariffs is just as illegal as the previous one was, and for many of the same reasons.
First, our brief explains why Section 122 simply cannot be used in the current circumstances. The statute only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or that create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." But these conditions are only possible under a fixed exchange rate system, such as the one the US formerly had under the gold standard. These conditions cannot and do not exist in a flexible exchange rate regime of the sort in place today.
Next, we explain why, if there is any ambiguity about whether Section 122 authorizes the massive tariffs imposed by the administration, the major questions doctrine requires this issue to be resolved against the government. The major questions doctrine requires Congress to "speak clearly" when it assigns to the executive "decisions of vast economic and political significance." The impact of the new Section 122 tariffs is as large or larger than many previous policies invalidated by the Supreme Court on major questions doctrine grounds. And the tariff power is not exempt from major questions scrutiny on the supposed ground that it is a "foreign affairs" power. The major questions doctrine also counts against giving the administration a blank check in determining whether the preconditions to invoke Section 122 exist.
Finally, if the court were to conclude that Section 122 does somehow grant the president the sweeping power he claims, it must rule that the law is an unconstitutional delegation of legislative power to the executive. Congress cannot give the president what would essentially be unlimited power to impose up to 15% tariffs on imports from any nation, especially since the administration's approach would allow the executive to circumvent the 150-day time limit simply by declaring that a new balance-of-payments crisis has arisen after it expires.
The Federal Circuit should affirm the decision of the Court of International Trade and declare the new round of tariffs to be illegal.
I wrote about the Court of International Trade decision against the Section 122 tariffs here, and previously wrote about why these tariffs are illegal here. Trump has also tried to use Section 301 of the Trade Act of 1974 to impose massive illegal tariffs against numerous trading partners. Litigation challenging them is also ongoing.
UPDATE: A bipartisan and cross-ideological group of prominent economists also filed a notable amicus brief in the Section 122 case today. See here.
