The Volokh Conspiracy Archive

In the Fall 2026 issue of Regulation, Ben Zycher argues that my critique of the Environmental Protection Agency's decision to rescind the "endangerment finding" which triggered the regulation of greenhouse gas emissions from new motor vehicles under the Clean Air Act is "deeply problematic." I appreciate that Zycher took the time to respond to my essay, but I think his analysis misses the mark.

I hope to have a full response to Zycher in due course. For the moment, I wanted to point out a serious error in Zycher's attempt at legal analysis.

Zycher writes:

Adler … notes:

Section 111 of the Clean Air Act … only applies to emissions from sources that "cause or contribute significantly" to the air pollution at issue, suggesting the EPA need not—indeed, perhaps, cannot—regulate sources of de minimis contributions under that provision. The absence of any such qualification in Section 202, however, is a mortal blow to the EPA's position."

That argument cannot be correct. In the context of Section 202(a), "cause or contribute significantly" is replaced with "reasonably be anticipated to endanger public health or welfare." Is Adler ignoring this language, or is he actually arguing that GHG emissions yielding temperature effects almost literally equal to zero nonetheless can "reasonably be anticipated to endanger public health or welfare"?

Zycher's claim here that "in the context of Section 202(a), 'cause or contribute significantly' is replaced with 'reasonably be anticipated to endanger public health or welfare'" is simply wrong, as a moment's review of the relevant statutory text would have demonstrated.

As I noted in my essay, Section 111 requires that the EPA adopt emission standards for a category of stationary sources if that category "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare."

Section 202(a) provides, in relevant part:

The Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. (Emphasis added.)

"Cause or contribute significantly" in Section 111 is not "replaced with 'reasonably be anticipated to endanger public health or welfare'" in Section 202, as the "reasonably be anticipated to endanger public health or welfare language" appears in both Section 202 and Section 111, word for word. The relevant difference between the two provisions, as I noted in my essay, is the insertion of the word "significantly," indicating that a significant contribution is required under Section 111, but not under Section 202.

So, is Zycher ignoring this language or did he not even read it?

Zycher also tries to claim the Section 202 requires the Administrator to find that emissions from new motor vehicles themselves "endanger public health or welfare." Again he ignores the relevant text. Section 202 requires that the vehicles in question "contribute to" the air pollution that "may reasonably be anticipated to endanger public health or welfare"--not that the emissions from the vehicles themselves endanger public health. Put another way, it is the air pollution to which the vehicle emissions contribute that must be reasonably anticipated to endanger public health or welfare, not the vehicular emissions in isolation. Zycher may think this is irrational or unwise (and I may even agree), but that does not change what the law says.

There is more I could say about Zycher's reply. For now I'll simply note that before Zycher suggests someone else is "ignoring" statutory language, he might want to give it a careful read for himself.

My brief essay, "The Road Not Taken in Trump v. Barbara," is now online as part of a Harvard Journal of Law & Public Policy Per Curiam symposium, "The Future of Birthright Citizenship: What's Next After Trump v. Barbara."

My essay begins:

It is a "well-established principle" that the Supreme Court "will not decide a constitutional question if there is some other ground upon which to dispose of the case." This principle was nowhere to be found in Chief Justice Roberts's opinion for the Court in Trump v. Barbara. It may be the Court's "usual practice" to resolve cases on statutory grounds so as to "avoid the unnecessary resolution of constitutional questions." In Barbara, however, the statutory question received no attention in the Chief Justice's opinion. Nor did it attract meaningful engagement from any of the dissents. Justice Kavanaugh was the only Justice to take the statutory arguments seriously, and he found them dispositive.

Resolving Barbara on statutory grounds would have allowed the Court to avoid the larger Constitutional question. It might also have provided a basis for broader agreement among the Justices. While there is a heated debate as to the original public meaning of the Fourteenth Amendment's Citizenship Clause, the meaning of Section 1401 at the time it was adopted is more readily resolved. It is well-established—if not universally observed—that the Court should "interpret statutory terms to 'mean what they conveyed to reasonable people at the time they were written." As the Court reaffirmed in Loper Bright Enterprises v. Raimondo, "every statute's meaning is fixed at the time of enactment."

A PDF of the full essay is here.

Other contributors to the symposium posted thus far include Gene Hamilton, Eric Wessan, Steven J. Menashi & Elias Neibart. There is also a debate between John Yoo and Linda Denno.

From Lewis v. StopAntisemitism, decided Friday by Judge Adrienne Nelson (D. Or.):

Plaintiff is a professional musician who has worked as a private music teacher for over thirty years. During the 2023-2024 school year, plaintiff worked as an independent contractor at Valley Catholic Music School … [teaching] private violin and cello lessons to Valley Catholic students in practice rooms across the K-12 campus. Plaintiff also taught strings classes to students and non-student community members at Valley Catholic's summer camp.

"Prior to August 2024, [plaintiff] posted some of [her] opinions regarding certain geopolitical events, including but not limited to the war in Gaza and its occupation by Israeli armed forces, on [her] personal Facebook page." Plaintiff expressed these views "entirely outside of the summer music camp and the private lessons with [her] students at Valley Catholic" and did not share or discuss these opinions with her students.

StopAntisemitism is a national organization focused on highlighting threats to Jewish safety and civil rights. One of the ways it seeks to do this is by publishing recurring features "designed to inform the public about antisemitism expressed by public figures, educators, activists, and institutions," including a recurring feature entitled "Corrupting the Classroom." Through the "Corrupting the Classroom" feature, StopAntisemitism shares publicly accessible statements made by various educators, along with defendants' commentary on the statements. On August 21, 2024, StopAntisemitism shared on its X.com profile a "Corrupting the Classroom" feature focused on plaintiff. The feature, which was spread across several X posts, includes screenshots of statements plaintiff made on her public Facebook account, archived links to those Facebook posts, and defendants' statements about plaintiff and her posts.

Defendants' first posts begin by stating, "Warning to parents of students in Beaverton, OR. Valley Catholic High School's Sue Lewis is not just instructing in the music school—she's using her platform to spread vile antisemitic hate online." Following that is a bulleted list that states that plaintiff "claims Israel killed its own citizens during the October 7th massacre by Hamas terrorists[, ] calls upon Hamas to destroy Israel[, and] denounces the atrocities of Hamas against innocent Israeli victims." The next post begins, "Sue Lewis continues her antisemitic tirades." It is then followed by its own bulleted list, stating that plaintiff "denies the Jewish connection to Israel[; ] claims Jews control humanity, a dangerous trope[; and] labels Zionism (Jewish self-determination) a terror movement based on Jewish supremacy."

9/26/1986: Chief Justice Warren Burger retires.

After being blocked in his attempt to keep CNN out of the White House altogether (including the main press briefing room), President Trump has excluded CNN from traveling with him on Air Force One. This, though, he is quite likely allowed to do.

As you likely recall, last year Trump kicked AP out of the Oval Office press pool, because the AP had refused (in my view correctly refused) to call the Gulf of Mexico "the Gulf of America." A D.C. Circuit panel majority, to oversimplify slightly, concluded that this was constitutionally permissible, both as to the Oval Office and as to Air Force One. An excerpt from that 2025 decision (AP v. Budowich):

The White House is likely to succeed on the merits because these restricted presidential spaces {Oval Office, … Air Force One, and … the President's home in Mar-a-Lago} are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted.

The majority concluded that those spaces differed from some more broadly open spaces in the White House:

The sun is setting shortly and I'm on the go, so my comments about the Missouri order will be brief.

First, the Court only addressed standing in a footnote. I am still not convinced any of the parties had standing but at least 5 members of the Court disagreed, including the Court's leading proceduralist.

Second, the per curiam noted that Justice Kavanaugh's prior orders had no noted dissents. I am still not convinced all three of these orders were unanimous. It may be that Justices Thomas and Alito did not think it was worth alienating Justice Kavanaugh.

Third, the point about this ruling not being a surprise was gratuitous. There were two summary ruling with no explanation. The prior case had serious AISG issues. The federal case did not. Apparently the prior cases were entirely about Purcell. Good to know.

Fourth, the Court says the merits here are unclear. I think this concession was the price of unanimity.

Fifth, this is an ironclad Purcell ruling that will be cited by the conservatives for years to come. The conservatives may see value in having this ruling as unanimous.

I was very wrong about the lighting docket here. I think the Justices felt they had to smack down the 8th circuit here.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

"Technology may make surveillance more convenient, but it does not make the Fourth Amendment's protections any less important." So said IJ legislative counsel Alasdair Whitney this week at a congressional hearing on Flock and other automated license plate readers. Read all about it at The Hill. And then maybe check out our model legislation on the topic.

New on the Short Circuit podcast: We welcome on Robert Steinbuch, a professor at the University of Arkansas, to tell a tragic story of the upside-down world of federal remedies.

After Anthropic refused to relax contractual prohibitions on the use of Claude for lethal autonomous warfare or domestic surveillance, the DoD deemed it a supply-chain risk and prohibited any of its contractors from using it. D.C. Circuit: Which was fine. Dissent: Clearly not what Congress meant.
In 2015, when Somerville, Mass. detective asks an informant to help locate a burglary suspect, the informant threatens to hurt the suspect (over an unrelated personal beef)—and then does, grievously, with a machete. City: We'd like to fire the detective for lack of candor about his role. Arbitrator: Not a chance. (The city's appeal is ongoing.) Detective (in a separate suit): Other officers have done worse and weren't fired; the city is retaliating against me. Jury: Yup, pay the detective $800k. First Circuit: More like $300k. (Some journalism.)
Some of a district court's ruling against DHS evaporates in a cloud of Article III standing in this First Circuit opinion. However, requirements for adequate notice regarding third-country removals of noncitizens remain. Less noticeable is the use in footnote 2 of the word "refoulment" (in the context of "chain refoulment"), which means "forcing a refugee or asylum seeker to return to a country or territory where they are likely to face persecution." Originally a French term, it was not listed in the original OED and, unlike many of its Law French friends, seems to have only migrated into English (along with human rights law) after WWII. Read More

From Judge Gregory Katsas, joined by Judge Neomi Rao, in today's D.C. Circuit decision in Anthropic PBC v. U.S. Department of War:

To succeed on such a First Amendment retaliation claim, the plaintiff or petitioner must prove that (1) it engaged in protected speech, (2) the government took materially adverse action against it, and (3) the speech caused the materially adverse action

Anthropic has satisfied the first and second prongs of this test, but not the third. The First Amendment squarely protects Anthropic's advocacy regarding the safe and appropriate use of AI products. Moreover, the Department's exclusion of Claude from its supply chain plainly qualifies as a materially adverse action. However, we can discern no causal connection between the two. Instead, the record makes clear that the Department removed Anthropic from its supply chain not because of its advocacy, but because Anthropic refused to agree to a contract term the Department deemed essential to national security.

Consider the timeline. By its own admission, Anthropic has advocated for use and safety restrictions since its founding: The company describes its own commitment to model safety as "the core of Anthropic's mission," and describes its use restrictions as reflecting "the very purpose for which [the] company was founded" and its "deeply held values." But throughout 2024 and 2025, the Department never acted adversely to Anthropic. Instead, it included Anthropic in a $200 million AI contract awarded in July 2025, and it sought to expand its relationship with Anthropic.

From Judge Colleen McMahon in Freeman v. Deebs-Elkenaney (S.D.N.Y.) Monday:

My order requires no clarification. It is perfectly clear. Counsel for Ms. Freeman do not get to set the rules.

Ms. Freeman will answer EVERY question that is put to her—whether or not the question was asked previously.

If Ms. Freeman asserts attorney client privilege with respect to a question that was not previously asked, you are to call my chambers immediately to obtain a ruling.

If I have to rule on more than one frivolous attorney client privilege objection, there will be consequences, in the form of sanctions, adverse inferences, referrals to the court's Grievance Committee with the possible revocation of pro hac vice admission to practice or admission to the Bar of this Court, and the possibility of a civil contempt holding. Please understand—this is not an idle threat. I am tired of this. I do not believe that Ms. Freeman's counsel is acting in good faith and I will not stand for being jerked around—and I am indeed being jerked around—in this manner by any lawyer who practices before me.

From Azhar v. Choudhri, decided today by the Texas Supreme Court:

A man who has lived in Houston since he was three years old, who built several businesses in Texas, and who accumulated over $100 million in community assets during a Texas-domiciled marriage, traveled to Pakistan to obtain a unilateral divorce from his wife.

He did so without her knowledge or consent, using an Islamic legal mechanism called talaq. His wife was not served with process. She was not heard. She received no notice at all until two years after the divorce was final.

In an unbroken line of decisions originating before the ratification of our Constitution, we have recognized the fundamental "principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result." As a result, efforts to give notice "must include inquiries that someone who really wants to find the defendant would make." Gamesmanship designed to "hide the ball" and prevent the defendant from learning of the lawsuit is inconsistent with our foundational notions of justice.

The Pakistani divorce judgment was issued contrary to these principles. Accordingly, it cannot be afforded comity….

Some excerpts from today's long majority opinion by Judge Gregory Katsas, joined by Judge Neomi Rao, in today's D.C. Circuit decision in Anthropic PBC v. U.S. Department of War:

This case arises from a decision by the Department of War to exclude Claude, an artificial-intelligence product developed by petitioner Anthropic PBC, from its supply chain under the Federal Acquisition Supply Chain Security Act of 2018. The Department made this decision after Anthropic refused to relax contractual prohibitions on the use of Claude for lethal autonomous warfare or domestic surveillance. Anthropic challenges the exclusion as arbitrary, unauthorized by the governing statute, and unconstitutional.

We reject these challenges. The Department had ample support for its conclusion that the continued integration of Claude into the Department's information systems, by the Department or its contractors, presented a statutorily covered national-security risk. As Anthropic admits, the company encodes restrictions into Claude that prevent the model from performing tasks that Anthropic wishes to prevent. On more than one occasion, these restrictions have stopped Claude from performing tasks requested by government users. And recently, a dispute arose over whether the contractual prohibitions barred the use of Claude in an ongoing overseas military operation, leaving the Department uncertain whether Claude would perform as needed and intended.

Anthropic's constitutional claims are also without merit. Its due-process claim fails because the Department promptly notified the company of the exclusion and its supporting rationale, and then gave the company a fair opportunity to contest the exclusion. And Anthropic's First Amendment claim fails because the Department excluded Anthropic from its supply chain based on the company's refusal to assent to a contract term that the Department deemed essential, not based on the company's support for greater governmental regulation of AI technology….

This case raises profoundly difficult questions about the appropriate military uses of an almost unimaginably powerful new technology. The Secretary raises the deeply sobering prospect of overly constrained AI models shutting down unexpectedly and thus causing important military operations to fail. Anthropic raises the deeply sobering prospect of unconstrained AI models hallucinating inappropriate targets for lethal military force. Both possibilities present obvious national-security concerns. But in our Republic, it is the President and the Secretary of War who must determine how best to balance the competing risks. In doing so here, the Secretary did not transgress any limits on his authority under the Supply Chain Security Act or the Constitution. Accordingly, we deny the petitions for review.

Judge Karen LeCraft Henderson dissented on statutory grounds:

9/25/1981: Justice Sandra Day O'Connor takes the oath.

I may have to eat crow on the lightning docket (no order in the Missouri case), but things are brewing with the third-country removal case. The Solicitor General's emergency application in United States v. D.V.D. lays out the issue neatly:

This is the third time the government has been forced to seek emergency relief from the district court's orders in this case about "third-country removals"—an essential tool to remove certain aliens, including some of the worst criminal aliens. This Court granted relief on both previous occasions. The latest order rests on the same fundamentally flawed legal premises as the previous rulings, and the nominal new grounds that the lower courts added to try to buttress those prior decisions are even weaker than those that failed to sustain the originals. Meanwhile, the equities that supported this Court's intervention (twice) have, if anything, only grown stronger in favor of the government's continued enforcement of the challenged policy. A stay is thus once again warranted. Cf. Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) ("Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases."). "Although the posture of the case has changed, the parties' legal arguments and relative harms generally have not. The same result that [this Court] reached in [June 2025] is appropriate here." Noem v. National TPS Alliance, 146 S. Ct. 23, 24 (2025).

An immediate administrative stay is particularly critical. The First Circuit had previously stayed this latest order pending appeal; the government thus has been conducting third-country removals under the challenged policy for the last 15 months. But at 11:36 p.m. last night—without even allowing the government to respond to respondents' motion (itself filed at 8:20 p.m.)—the First Circuit abruptly dissolved the stay. The unexpected springing-back of district court's order has, this Office is informed, created substantial logistical problems with ongoing removal operations— including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals. For example, DHS informs us that it has already canceled a flight to three separate countries carrying 70 aliens with criminal convictions (including aggravated assault and serious drug offenses), and that the cancellation has required a new round of diplomatic engagement with each of the three countries. Those disruptions will only get worse. To halt that chaos, an immediate administrative stay should be entered while the Court considers this application. In light of the ongoing disruption caused by the First Circuit as well as the prior stays granted by the full Court, if the Circuit Justice enters a briefing schedule without also entering an immediate administrative stay, the government respect fully requests that its request for the immediate administrative stay be referred to the full Court. Cf. Rollins v. Rhode Island State Council of Churches, 146 S. Ct. 402 (2025) (No. 25A539); A.A.R.P. v. Trump, 145 S. Ct. 1034 (2025) (No. 24A1007).

Circuit Justice Jackson has denied an administrative stay, and granted a four-day response time. That is leisurely compared to the 14 hours Justice Kavanaugh gave Missouri to respond.

I think now the case is in fact referred to the full Court. Let's see whether there are five votes for an administrative stay. I think Justice Jackson tried to call her colleagues' bluff.

My SCOTUSBlog post on empowering the majority offered a similar remedy:

It is not clear how many votes are needed to take a case away from a circuit justice. Here, I propose a clear rule: the Refer-6. Six justices, at any point, can vote to refer any pending matter to the full court. At the latest, the Refer-6 can be invoked after the briefing is completed. The Refer-6 can also be invoked to establish a briefing schedule. Or the Refer-6 can be invoked as soon as an application is filed in order to enter an administrative stay.

Realistically, the Refer-6 can be discussed even before an emergency application is filed. Usually, the clerk of the Supreme Court is given a heads-up that an emergency application is on its way. The Refer-6 can follow a Conference-3. At that point, the justices can informally establish a game plan, given how the case has proceeded through the lower courts. If six justices decide this matter belongs before the full court, the referral can happen right away. Of course, the circuit justice can dissent from the order being referred to the full court. But the circuit justice cannot stop the referral.

Some of my proposals were designed to promote collegiality. The Refer-6 would have just the opposite effect. It would signal that the court did not want a particular circuit justice to have power over a matter. But I suspect this Rubicon was already crossed in the Rhode Island case. Jackson perhaps tried to do too much in her capacity as circuit justice, and her colleagues apparently countermanded her.

Justice Jackson makes the case for unilateral SCOTUS reform.

Update: Today Justice Jackson gave a speech at the University of District of Columbia. And this evening, Chief Justice Roberts, and Justices Barrett and Kavanaugh were at the White House State Dinner. (I wonder if the Chief was given a tour of the new construction he tried to stop.) Query if the Justices somehow had an informal conference about the administrative stay before Jackson denied it.

From a just-filed affidavit:

For more on the initial noncompliance, see here.

Here's an announcement for law student readers of this blog. The International Moot Court Competition in Law & Religion just posted the problem for this year, about whether a public-school class on AI would constitute an establishment of religion. Now in its tenth edition, the competition draws students from the US and Europe to argue a case before judges representing the US Supreme Court and the European Court of Human Rights. This year's argument round will take place at the University of Milan in March. Details at the link.

Sgt. York; thanks to Wikipedia for the image.

From Judge Bernard Jones (W.D. Okla.) yesterday in Mastriano v. Gregory:

According to Plaintiff:

This is an action for damages arising from Defendants' coordinated efforts of fraud, defamation, and anti-competitive conduct designed to destroy Plaintiff's academic reputation, eliminate him as a competitor in the market for World War I military history and scholarship, and interfere with his political campaigns for public office.

In the SAC [Second Amended Complaint], Plaintiff alleges he is a retired United States Army colonel, a recipient in 2013 of a Ph.D. in United States military history from the University of New Brunswick (UNB), a former Army War College professor, a published author of books on Sergeant Alvin York (Sgt. York) and World War I as fought in France, and a public speaker on military history. Plaintiff also alleges he is a current state senator for the Commonwealth of Pennsylvania's 33rd District, was the 2022 Republican nominee for Pennsylvania governor, and according to Plaintiff, "was considered the frontrunner for the 2024 U.S. Senate seat." …

Gregory was a graduate student and Ph.D. candidate at the University of Oklahoma. Gregory is one of several historians who assert that Sgt. York's role in the capture of German soldiers was exaggerated, in direct contrast to Plaintiff's position regarding Sgt. York's role. Gregory has written a book, Unraveling the Myth of Sgt. Alvin York: The Other Sixteen, describing the soldiers who fought alongside Sgt. York but whose contributions are largely absent from the historical account Plaintiff and others popularized.

While conducting his research, Gregory identified what he believed were numerous errors in Plaintiff's scholarship and reported 213 alleged inaccuracies to Plaintiff's publisher and UNB in 2021 and 2022. When Plaintiff ran for governor of Pennsylvania in 2022, the media covered Gregory's reports of inaccuracies and his opinion that the large number of inaccuracies suggest academic fraud….

The court rejected Plaintiff's RICO claim:

The Volokh Conspiracy

When Making a Statutory Argument, It Helps To Read the Statute

The Road Not Taken in Trump v. Barbara

Music Teacher's Defamation Lawsuit Against StopAntisemitism Thrown Out

Today in Supreme Court History: September 26, 1986

Open Thread

May President Trump Exclude CNN from Air Force One? Very Likely Yes

Lightning Strikes Thrice

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Anthropic's "Supply Chain Risk" Designation Stemmed from Its Refusing to Agree to Contract Terms, Not Its Speech

"I Will Not Stand for Being Jerked Around … by Any Lawyer Who Practices Before Me"

Texas Court Refuses to Enforce Pakistan Court's Divorce Judgment, in $100M-Marital-Community-Asset Case

Anthropic's Claims Over Its "Supply Chain Risk" Exclusion by Department of War Rejected

Today in Supreme Court History: September 25, 1981

Open Thread

Because KBJ Denied Administrative Stay in Third-Country Removal Case, The Application Should Be Referred To The Full Court Now

White House Says It's Complying with TRO Requiring Restoration of CNN, MS NOW, and Politico Reporters' Access, Despite …

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Pennsylvania Sen. Douglas Mastriano's Lawsuit Related to His Ph.D. Dissertation Mostly Thrown Out

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