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The Volokh Conspiracy
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New NYU Brennan Center Article on "Using State Constitutions to Combat Exclusionary Zoning"
It explains how to better use both existing state constitutional provisions, and constitutional amendments. Based on a longer academic article, coauthored with Joshua Braver.
Today, the NYU Brennan Center State Court Report published my article "Using State Constitutions to Combat Exclusionary Zoning." Here is an excerpt:
Exclusionary zoning is probably the biggest cause of the housing crisis besetting many parts of the United States. A broad cross-ideological array of economists and land-use scholars has concluded that such zoning is responsible for massive housing shortages, and that it also cuts off millions of people — particularly the poor and minorities — from economic and social opportunities. But relief is possible — state constitutional law can potentially do much to address this issue in ways that other pathways to reform cannot readily match.
Exclusionary zoning involves restrictions on land use that constrain the amount and type of housing that can be built in particular areas. Most notably, some 70 percent of all residential property in the United States is zoned for single-family residences only. This, combined with other restrictions like minimum lot sizes and parking mandates, makes it difficult or impossible to build new housing in response to demand in many areas, particularly those that are most attractive for people seeking job and educational opportunities.
In a 2024 Texas Law Review article and a shorter version in The Atlantic, Joshua Braver and I explained why most exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires payment of "just compensation" whenever the government takes private property. The basic idea is simple: The property right protected by the Takings Clause includes the right to use property, and the right to use is severely constrained by zoning restrictions that block housing construction….
While we hope federal courts eventually adopt this position, it could take a long time. In a recently posted article, "The State Constitutional Case Against Exclusionary Zoning," currently under submission to law journals, Braver and I build on our 2024 publications, and explain how great progress can be achieved by using state constitutional law. This can be done both by litigation under existing state constitutional provisions and through potential constitutional amendments.
Braver is a progressive living constitutionalist; I am a libertarian and an originalist. Despite ideological and jurisprudential differences, we are united on this important issue, and we hope others might join us.
The rest of the article outlines our ideas for doctrinal improvements with respect to existing state constitutional provisions, and also for constitutional amendments.
We go into these matters in much greater detail in our academic article, "The State Constitutional Case Against Exclusionary Zoning," recently posted on SSRN, and currently under submission to law reviews.
The fact that the Brennan Center asked me to write a piece based on the longer article, even before the latter was posted and submitted to journals, is perhaps a sign of the widespread interest in this topic.
Some More Or Less Tentative Thoughts on Substack
I appreciate the emails from readers about my Substack post. I do not read the comments, so if you left something there, and actually want me to see it, email me! Then again, I suspect a fair share of comments are written with full knowledge that I will never see it. So be it.
After reflecting on the responses, I will offer some more or less tentative thoughts.
First, why did I write my post? I could have simply launched a Substack, as others have done, without any explanation. I have several reasons. At the highest level, writing helps me think things through. If I can't state my thesis in a coherent written form, then my thesis doesn't work. Moreover, once I write something down, I've committed myself to it. "Locked in" as they say. But on a deeper level, I feel a kinship with my readers, even though I don't know them. I am fully aware of how many people read my posts. Indeed, it is a strange sensation when I meet people in public who recognize me from the blog. Once I was in an Uber and the driver figured out who I was and told me he watched all of my YouTube videos. We chatted the entire ride about Supreme Court cases. I invited him to my lecture the next day sent him a copy of my most recent book. On the Fourth of July, I visited the National Constitution Center (where else would I go?) and a reader spotted me and asked for a selfie. We later corresponded about career advice. I owe this audience I've built some explanation before I change how content is delivered.
Second, another comment was that I should not be motivated by money. This is something of a sensitive point, but is worth addressing. I went straight from clerking to academia. Other than working as a summer associate, I never earned a paycheck in private practice. I never collected those cushy clerkship bonuses. Plus, as readers will recall, I resigned from a position last year, and with that resignation, a paycheck immediately vanished. I have not taken a vow of poverty, and am not seeking anyone's pity. I have a blessed life with an amazing career that I would not trade for anything. Still, virtually all academics who forego careers in legal practice have to find opportunities for outside income. Some teach additional classes, even as adjuncts at other law schools. Others do consulting or part-time litigation with law firms. I am fortunate to be on the speaking circuit, which pays generous honoraria. Still, as time passes, the toils of traveling across the country grow. Many academics do get paid for their writing. Law schools often will provide writing stipends, or bonuses for articles placed in top journals. Law review symposiums often provide honoraria for participation. And so on. My goal, at least, is to be transparent.
Third, a reader suggested that my influence might decrease if I initially posted my material behind a partial paywall. I've given this issue quite a bit of thought. Most of my posts are written for a general audience, and have very little impact. But my most impactful audiences are written for very specific audiences. I would wager that the specific audiences that impact policy are the sorts of people who would not mind paying a nominal fee each month. Moreover, a Substack would allow me to build an audience of people who may not otherwise visit the Volokh Conspiracy. One of the greatest virtues of this blog is that there are a wide range of authors who post on a wide range of topics. But some readers may not prefer this format with all those views. Indeed, I've heard that there is apparently a filter to remove all of the "Josh Blackman" posts on VC. An independent site would let me speak to readers who want to hear my views. Commenters who hate my work would feel no obligation to read at all. Again, I ran a solo blog for more than a decade on JoshBlackman.com. I'm sure most of those readers came over to the Volokh Conspiracy, but some may not have.
Fourth, a reader said a 24-hour delay was not long enough. If that was the only gap, he would see no reason to subscribe, and just postpone his reading for a day. One alternate idea I had would be to post all of the week's content on the Volokh Conspiracy on Friday afternoon, similar to how the Supreme Court used to post all of the oral argument for the week on Friday afternoon. This would let readers who are unable or unwilling to pay the fee to catch up with all of my work over the weekend. My observant readers could event print stuff out for non-electronic reading. This would also eliminate the administrative burden of trying to figure out when posts would run. I could condense everything into a "week in review" format.
Fifth, a longtime reader raised what I think is the biggest risk with creating a subscription model: I may be tempted, even subconsciously, to alter my work to attract a bigger audience. This concern is serious. Getting clicks can be addictive. Indeed, one of the reasons I have limited my part-time legal practice to pro or "low" bono work is so that I never feel obligated to take or keep a case I don't believe in. Relatedly, this model would create an incentive to always create new content. As things stand now, I can write five posts in a day and then nothing for two weeks. But if there is an expectation to release a newsletter each week, I would feel obligated to write a newsletter each week. I don't know that I have a solid response to this concern. I can say, "Well, if it doesn't work out, I'll go back to the old model." But I am aware that a dependency on a source of income is hard to break. (Again, see my resignation from Heritage.) The best response I can offer is that my nearly two decades of work has steeled me to always pursue the truth. Indeed, a name I came up with for a Subtack refelcts this mantra: "Unpopular Opinions: Always authentic. Often controversial. Never afraid."
I welcome more thoughts and comments. I continue to work through this idea.
Updated Version of My Article "Immigration is Not Invasion"
It is now available on SSRN. This revision adds additional points, and takes account of various recent events.
A revised and updated version of my article "Immigration is Not Invasion" now up on SSRN and can be downloaded for free. I have added some additional points, and updated to cover recent legal decisions and events, including with regards to conflicts with Venezuela and Iran. Law journal editors may be interested to know that I will be submitting it in the summer submission cycle.
Here is the abstract:
In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as "invasion" under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as "invasion." As James Madison explained in 1800, "Invasion is an operation of war." Illegal migration and drug smuggling do not qualify.
Part I summarizes the history of the "invasion" debate and currently ongoing litigation over it. Part II explains why the broad interpretation of "invasion" is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to "invasion" in the Federalist Papers.
In Part III, I consider the meaning of "invasion" in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters. The more recent US military intervention in Venezuela also cannot be used to justify invocation of the AEA.
Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress' power to declare war and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of "invasion." They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.
Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of "invasion" or the factual issue of whether an "invasion" – properly defined – has actually occurred.
The article has gotten the coveted "highly recommended" rating from Prof. Larry Solum at Legal Theory Blog.
Lawyer Challenges Suspension for Being Too Phishable; No Dice, Says Appellate Court
Take that training seriously, folks.
From Bedrossian v. Cal. State Pers. Bd., decided Tuesday by California Court of Appeal Justice Frances Rothschild, joined by Justices Gregory Weingart and Michelle Kim:
The [State Compensation Insurance Fund] employed Bedrossian as a staff attorney beginning in March 2004 and ultimately promoted her to attorney IV. In the latter position, she was responsible for litigating worker's compensation cases involving "confidential and sensitive information." A "duty statement" Bedrossian signed lists among her responsibilities as an attorney IV "[m]aintain[ing] user mastery over [the Fund's] computer-based technology" and "communicat[ing] professionally and efficiently." …
The Fund "require[s] that all employees take [cyber]security awareness and privacy training annually so that they can recognize external threats such as phishing and other social engineering tactics." "Phishing" refers to the process of sending emails purporting to be from a legitimate source and encouraging the recipient to "click on … a malicious link" or attachment or provide sensitive information. "If a phishing email is successful, [it] can either steal data from the user," "compromise the user's account," or "compromise the entire system" of an organization.
Over the course of her employment at the Fund, Bedrossian participated in numerous training sessions on how to identify and handle phishing emails. This training educated employees about "red flags" which should alert the reader that an email is potentially dangerous, such as asking the recipient to click a link to avoid a negative consequence. In 2019, the Fund began automatically adding an "external sender notification" banner on all emails from outside the Fund, which reminded the recipient in yellow highlighted text that the email "was sent from outside [the Fund]" and not to click on links or open attachments "unless you recognize the source and know the content is safe." …
[1.] Phishing Email Test Campaign
The Fauci Diaries and the Cult of Judicial Celebrity
Like Dr. Fauci, (liberal) judges nominated to the Supreme Court are immediately elevated to the ranks of AAA celebrity.
A constant theme in the Fauci Diaries is celebrity. Fauci was absolutely obsessed with the adoration he received from celebrities. He would list all the famous people at parties he attended. He bragged how Barbara Streisand called him to ask for advice on vaccines. Julia Roberts called Fauci her "personal hero." Kim Kardashian organized a Zoom call with Fauci and other A-list celebrities. And so on.
Fauci, who had previously toiled in obscurity, ate it all up. Indeed, I would wager part of his motivation to always be on camera was to gain even more affection from his loving crowd. Thus, Fauci became an overnight celebrity--in his own estimation, one of the most famous people in the world. I'm sure Fauci thought, like John Lennon, that he was bigger than Jesus.
That sort of narcisism can go to a person's head. Perhaps Fauci may have approached his role with more humility and uncertainty if he wasn't playing up for elites, who suffered no consequences from lockdowns. They could go outside in their palatial estates and have gourmet dinner at the French Laundry unmasked.
The headlines about Dr. Fauci yesterday, I think, need to be compared with Justice Jackson's appearance on Michelle Obama's podcast. Five years ago, no one outside of a group of lawyers knew who Ketanji Brown Jackson was. She did not receive tickets from Beyonce or flowers from Oprah. She was not photographed by Annie Leibovitz for the cover of Vogue. She was not invited to attend the Grammy's. She did not have a part in a Broadway show. She was no more famous than any of the other judges on D.D.C. Yet, once Jackson was elevated to the Supreme Court, she was immediately thrust into the top of the A-list.
Dr. Fauci was not immune from the effects of overnight celebrity. I don't think Justice Jackson can be either. The appeal of being loved is far too intoxicating. And as I've noted before, Judges--even implicitly--will say and do things to keep that love coming.
To be sure, conservative judges also become overnight celebrities, but not in a good way. Just look at Saturday Night Live, and compare how Brad Pitt played Anthony Fauci and how Matt Damon played Brett Kavanaugh.
It is a fact that conservative celebrities just aren't as cool. Harlan Crow is not Russell Crowe. Maybe this fact helps keep people on the right more grounded?
In any event, Dr. Fauci's refusal to testify about conduct for which he was pardoned should give rise to serious constitutional litigation, including about the validity of the autopen pardon. Stay tuned.
Today in Supreme Court History: July 30, 1956
7/30/1956: Congress enacted a resolution, declaring that the motto of the United States is "In God we Trust." The Supreme Court declined to grant review in Newdow v.Congress, which considered the constitutionality of that motto.
Open Thread
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Rebekah Jones, Claimed 2020 Florida Health Department COVID-19 Whistle-Blower, Loses Lawsuit Over Firing
From Jones v. Florida Dep't of Health, decided by Florida Court of Appeal Judges Joseph Lewis, Ross Bilbrey, and Thomas Winokur:
Jones was … the Environmental Health Program Consultant in the [Florida Department of Health] Division of Disease Control and Health Protection. In March 2020, as part of DOH's response to the COVID-19 pandemic, Jones was assigned to work on the Department's "COVID-19 Dashboard" to provide an interactive illustration of COVID-19 testing data to the public. The parties agreed that Jones' chain of command began with her immediate supervisor, IT Director Craig Curry. Their Division Director was Dr. Carina Blackmore. Authority proceeded to then-Deputy Secretary Dr. Shamarial Roberson ….
[O]n or about April 9, 2020, Curry learned that Jones had posted Facebook messages identifying herself as the person who maintained DOH's COVID-19 Dashboard and explaining the information displayed on the Dashboard. About twelve days later, Curry discovered that Jones had given an interview to DOH's outside geographic information system (GIS) vendor describing her work as the Dashboard manager.
Curry also found out about a blog Jones published, representing herself as the author of DOH's COVID-19 Dashboard and posting charts of DOH data she had created stemming from her job duties. Curry was concerned that Jones had not obtained permission from DOH's Office of Communications before making these public statements as a DOH representative about the Dashboard information.
In late April 2020, to facilitate the State's plan to reopen counties with lower rates of new COVID-19 infections, Jones was tasked with creating and presenting reopening criteria to include on the Dashboard. Jones presented her work on this "county scorecard project," including positivity rates for each county, to Deputy Secretary Roberson on April 26, 2020.
According to Jones, Roberson disapproved of Jones' presentation because her COVID-19 figures exceeded the target percentage rates for reopening many counties. {The veracity of Jones' allegations is immaterial to our disposition.} Jones testified that Roberson instructed her to reconfigure the data by lowering the infection rates and exempt counties with smaller populations from the "scorecard" materials.
Viewpoint and Race Discrimination Claim in COVID Relief Grants Can Go Forward
A short excerpt from the long opinion today in African People's Ed. & Defense Fund, Inc. v. Pinellas County, written by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher and District Judge Paul Huck (S.D. Fla.):
Florida nonprofit African People's Education and Defense Fund twice applied for COVID-relief grants from monies made available to Pinellas County by the federal government. The Pinellas County Board of Commissioners initially approved APEDF's first grant request but later revoked that approval; the Board denied the group's second grant application outright.
APEDF sued, contending that the Board had revoked the first grant and denied the second on the basis of race and because of the group's association with the "Uhuru Movement"—which APEDF describes as a collection of "like-minded groups and individuals promoting Black community empowerment."
The court allowed APEDF's First Amendment to go forward:
Where, as here, the government is doling out public funding, it operates as a sovereign rather than as an employer. Pinellas County wasn't seeking an ongoing relationship with APEDF, nor was it offering to pay APEDF to perform a service or to act as an agent. Rather, it was simply determining whether APEDF's contributions to the public justified an award of grant money. In that respect, APEDF is less like an employee or a traditional government contractor and "more like [an] ordinary citizen[ ] whose viewpoints on matters of public concern the government has no legitimate interest in repressing."
Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit
The recommendation includes entry of a default judgment against Boteach in a defamation lawsuit brought against him by a Florida hotel.
An excerpt from today's long Report and Recommendation by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Jacob:
This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff's hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant's subsequent complaints.
Plaintiff's operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff's response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.
Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant's Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….
The merits of the Parties' competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant's conduct during the litigation, the meaning and scope of the District Court's February 20, 2026 Order …, and whether Defendant's subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court's inherent authority….
No Pseudonymity for the Pretend Date in Pentagon Contractor's Suit Over Hidden Date Recording by O'Keefe Media Group
First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
The court held that Heidi, who was sued as one of the defendants, couldn't remain pseudonymous:
Throughout this litigation, Defendants have maintained that [Heidi Doe]'s name should be sealed…. Defendants … assert that [Heidi]'s true name must be kept under seal on the basis that her identity is protected by the District of Columbia reporter's shield law. In the alternative, they argue that good cause exists under Rule 26(c) to maintain [her] pseudonym….
Defendants still have not shown [Heidi] is protected by the Shield Law. The District's Shield Law prohibits the compulsory disclosure of "the source of any news or information procured by [a] person while employed by the news media and acting in an official news gathering capacity," creating an absolute privilege for the identities of sources.
The court previously denied Defendants' motion on the ground that they did not present any evidence—"not even a declaration"—to support treating as a source rather than as a journalist. Defendants this time come armed with a declaration from [Heidi], but the declaration only reinforces the court's previous determination that [Heidi] is not a source within the meaning of the Shield Law.
A Bit on Pentagon Contractor's Wiretapping Claim Over Hidden Date Recording by O'Keefe Media Group
First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here's what the court had to say about the wiretapping claim:
Pentagon Contractor's Fraudulent Misrepresentation Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward
From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in a separate post, but here's what the court had to say about the fraudulent misrepresentation claim:
A claim of fraudulent misrepresentation requires proof of "(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation." Plaintiff alleges that [redacted] "knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes." Using her "inauthentic profile," falsely represented she was romantically interested in Plaintiff, when in fact "[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them." And her false representations were "material to inducing" Plaintiff to go on the two dates with [redacted] and discuss his views and career.
{OMG and O'Keefe's motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of "blam[ing] a lady for not being honest as to her motives" instead of "blaming himself for having a big mouth and spilling secrets." Apparently, his "audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan."}
Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because "a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern" and because the First Amendment "does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern." …
Pentagon Contractor's Libel Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward
From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
The publication of these videos caused Plaintiff to lose his job. Plaintiff subsequently brought this action alleging defamation, false light, fraudulent misrepresentation, conspiracy, and violations of the District of Columbia and federal wiretapping statutes….
Plaintiff alleges that, "[t]hrough numerous edits and splices from statements made throughout both dates, and even between each date, the various videos and articles … were created to intentionally provide false or implied evidence to support Defendant OMG and O'Keefe's fabricated claims that [Plaintiff] was essentially attempting to launch an unlawful coup against President Trump."
Specifically, he alleges that "Defendants falsely state or imply in their [publications] that Mr. Mannina was a senior Pentagon Official providing direct advice to the [Joint Staff] and part of a subversive 'Deep State' that held covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration … in highly secure locations, including 'The Tank', that were 'reserved for critical defense deliberations.'" "Defendants further falsely state or imply that [Plaintiff], in his official capacity, was lying, spying, conspiring to commit a coup, and acting unethically." …
New Article on "The State Constitutional Case Against Exclusionary Zoning"
It is the first comprehensive analysis of how to use state constitutional law to combat exclusionary zoning. Coauthored with Josh Braver.
My new article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver) is now up on SSRN, available for free download. It will soon be submitted to law reviews! Here is the abstract:
Exclusionary zoning is the biggest cause of the housing crisis besetting many parts of the United States. This Article shows how state constitutions can be used to combat it through two complementary paths: litigation under existing constitutional provisions and constitutional amendment. It provides the first comprehensive account of state constitutional jurisprudence on exclusionary zoning across all fifty states. It finds that state courts have rarely imposed meaningful limits, but uses this body of law as a foundation for expanding constitutional protection.
Most state courts have interpreted their takings clauses in lockstep with federal doctrine, including the highly deferential Penn Central test. New York, Pennsylvania, and New Jersey have developed more aggressive approaches. But their equivocal results have led many scholars to conclude that courts have little useful role to play.
We reject that conclusion. We identify two effective and judicially administrable approaches grounded in state takings and due process doctrine. The Article also proposes state constitutional amendments that would require compensation for exclusionary zoning, categorically prohibit specified exclusionary practices, or adopt more limited reforms. Together, litigation and amendment offer a practical state constitutional strategy for addressing exclusionary zoning.
This article builds on our earlier coauthored work, "The Constitutional Case Against Exclusionary Zoning," published in the Texas Law Review (we also published a shorter, nonacademic version in the Atlantic). There, we make the case that most exclusionary zoning violates the Takings Clause of the Fifth Amendment. We hope that federal courts will eventually adopt that view. But state constitutional law can be used to address the problem more swiftly, and states need not wait for federal courts to act.
Josh a progressive living constitutionalist, while I am a libertarian originalist. But we agree on this crucial issue. And we hope others might, as well.
"I Rushed out Already Moist. My Mouth. I Want My Face. We Just Carry It On."
From the Complaint in Kivler v. Wolf Licensee LLC, just removed to E.D. Pa.:
E.K., is a 16-year-old student athlete, who won her [wrestling] match at the district championship.
Shortly after being crowned district champion on February 21, 2024 [likely a typo for 2026 -EV], a reporter from Fox56 (Wolf) requested to interview E.K, and E.K. agreed. During this recorded interview, E.K. described the match and her strategy for how she planned to prevail.
However, on February 24, 2026, Defendants published the Article that did not use the quote E.K. provided, but rather an entirely different quote that E.K. never said and completely inconsistent with the recorded audio. Specifically, the Article attributed the following quote to E.K, a young girl: "I rushed out already moist. My mouth. I want my face. We just carry it on. So I knew what she was going to go for. Somebody gets it. I knew she was going to make a few mistakes, but not everybody makes mistakes. They were was. 20."
Cert Denied, Cert Delayed, Cert Granted
In at least four cases, the Court denied cert over three dissentals, and then resolved the same issue a year or more later.
As I reviewed the wall of receipts for cert denials, I noticed something of a pattern. In several cases, the Supreme Court denied certiorari over three dissenting votes. Invariably those three dissenters were Justices Thomas, Alito, and Gorsuch, though in some cases Justice Kavanaugh provides the third. Yet, a year or more later, the Court resolved the same or similar issue that was presented in another case. In recent years, the Court has taken to relisting a petition before granting it to make sure there are no vehicle problems. Indeed, some cases are relisted for months at end, only to be granted, like the AR-15 case. But in a handful of cases, the path to a cert grant is a cert denial.
Consider four examples.
In July 2021, the Supreme Court denied cert in Arlene's Flowers v. Washington, over dissents from Thomas, Alito, and Gorsuch. This case had started way back in 2013. Two months later a cert petition was filed in 303 Creative v. Elenis, which was granted in February 2022. In June 2023, the Court ruled that requiring the designer to make a website for a gay wedding violated the Free Speech Clause of the First Amendment. This was the issue presented, and denied in Arlene's Flowers. About two years lapsed between the cert denial and the issue being resolved.
In December 2023, the Supreme Court denied cert in Tingley v. Ferguson, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case challenged Washington state's ban on talk "conversion therapy." Eleven months later in November 2024, a cert petition was filed in Chiles v. Salazar. This case challenged Colorado's ban on conversion therapy. Cert was granted in March 2025, and Colorado's law was declared unconstitutional in March 2026 by an 8-1 vote. Again, about two years lapsed between the cert denial and the issue being resolved.
In December 2024, the Supreme Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case was a challenge to a school's policy to encourage students to "transition" without parental knowledge or consent. About a month later, an emergency application was filed in Mirabelli v. Bonta. In March 2026, the Supreme Court decided Mirabelli on the interim docket, largely settling the question presented in Parents Protecting Our Children. Here, about a year lapsed between the cert denial and the issue being resolved.
In June 2025, the Supreme Court denied cert in Snope v. Brown, over dissents from Justices Thomas, Alito, and Gorsuch. This case had been stuck in docket purgatory for nearly eight months. Justice Kavanaugh concurred in the denial of cert, but wrote "this Court should and presumably will will address the AR–15 issue soon, in the next Term or two." The Court took two such cases about a year later in July 2026. A decision is likely to come by July 2027. Here, about two years will lapse between the cert denial and the issue being resolved. Though, to be fair, this issue has been pending since 2008 or so after Heller was decided. So the more accurate count is about two decades.
What can explain each of these changes? Well, the cert grant means that a Justice who did not join the dissental flipped his or her vote to grant cert. After Snope, Justice Kavanaugh clearly became the fourth vote. After Tingley, I would wager that Justice Gorsuch became the fourth vote. After Parents Protecting Children, I think Justice Barrett changed course, as she wrote a strong concurrence in Mirabelli. I am not sure who flipped after Arlene's Flowers, but my guess would be Justice Kavanaugh.
I suppose the initial cert denial can be due to vehicle problems, though all of these cases are brought by sophisticated counsel who tee up the issues neatly. Something else may be going on. At least in Snope, Justice Kavanaugh apparently just wanted to clear some other items off the docket before going for the AR-15 case.
During her congressional testimony, Justice Kagan seemed quite content with the Court only granting sixty cases a year. I bet. I presume that the Court's progressives do everything in their power to keep away liberal lower court rulings that could get reversed. Kagan offered this rosy account of the docket size:
I would say we have about an ordinary regular docket. If you look back a number of decades, the docket has gone down. When I clerked at the Court, I'm afraid to say how long ago, in the late 1980's, the Court handled about 140 cases a year. The Court now handles in terms of regular argued cases maybe 70 cases a year, so a significant decrease. There is a cottage industry and explanation for why that decrease took place over time. All the time that I've been on the court we've been relatively stable. So the last fifteen years or so we are doing about one year it's 75, one year it's 60, it's something on that order. So we continue to hear cases every month and to always issue all our opinions before July 4 every year.
The number has not been 75 for some time. It has not been 70 for some time. 65 would seem like a bumper crop. We are now consistently below 60. Of course, what matter is not just the raw number. Does anyone really care about how many ERISA cases are decided? What matters are the sorts of cases that divide the nation. And in at least two dozen cases I've identified, the most hot-button issues seem to keep getting denied with three dissenting votes.
As I'll explain in a future piece, a Justice should be evaluated not just based on the merits votes they cast, but on the cases they place on the docket. Justices Thomas, Alito, and Gorsuch are the most aggressive justices who wish to resolve issues that split the lower court. Justice Kavanaugh has gotten better on this front, and now seems to be following through on his promise, at least in the AR-15 context. Justice Barrett, from everything I can tell, is the least cert-eager Justice on the Court.
Justice Barrett relayed a relevant anecdote at a book event (it was not recorded, so I am trying to recreate it from memory.) Every year, she asks her law clerks at the start of the term to find cases that should be granted. Then, at the end of the term, she asks if there were some cases that should have been granted, but were not. Apparently, the clerks tell her that no cert-worthy cases were missed. Well, what the clerks are saying is that Justices Thomas, Alito, Gorsuch, and Kavanaugh just don't know what makes a case cert-worthy. Ahem.
Justice Barrett has only ever dissented from the denial of certiorari once. Her caution and hesitancy keeps the docket small, much to Justice Kagan's delight. Much more to come.
