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Voting

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.

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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.

Free Speech

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.

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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.

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A Remarkable 48 Hours In Missouri

Justice Kavanaugh rules against Missouri twice, likely without even reading all the papers.

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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"

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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." …

Free Speech

Court Blocks Investigation of AI-Generated Video About Vermont Political Candidates Because Video Is Obviously "Ridiculous"

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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:

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Title IX

Med School Didn't Violate Accuser's Title IX Rights by Imposing Only a 20-Month Suspension on Student Found Responsible for Sexual Assault

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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:

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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.

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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).

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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

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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.

Free Trade

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.

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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.

Free Speech

Journal of Free Speech Law: "Speaking Collectively: The First Amendment, the Public Sector, and the Right to Bargain and Strike," by Kate Andrias

Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.

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The article is here; the Introduction:

The First Amendment, as interpreted by the federal courts, provides government workers a right to associate in unions but no right to bargain collectively or to strike. Indeed, it is a crime for employees of the federal government and of many states to participate in a strike or even to join an organization that asserts the right to strike against the government. In some states, public sector workers are also prohibited from engaging in collective bargaining. States can discipline and fire workers who seek to bargain collectively about their working conditions or who, along with their coworkers, withdraw their labor in protest of their conditions.

Yet, this interpretation sits uneasily with the text of the First Amendment, its purposes, and the Supreme Court's First Amendment doctrine in other contexts. The amendment protects "the freedom of speech, … [and] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Court has found "a corresponding right to associate with others," including "in pursuit of … political, social, [and] economic … ends." And the primary purpose of the First Amendment, the Court has held, is to advance democratic self-governance.

How is it that the Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment's ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers' ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through workers' association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union objectors, the Court has recognized that public sector collective bargaining is closely intertwined with politics and governance. Yet, with virtually no analysis, the Supreme Court and numerous lower courts have dismissed arguments for First Amendment protection of public sector bargaining and strikes.

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Free Speech

Scary Spice off the Hook in Florida

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From today's decision by Judge Darrin Gayles (S.D. Fla.) in Belafonte v. Brown:

This case arises out of abuse allegations made by Defendant Melanie J. Brown ("Ms. Brown"), singer from the famed music group "Spice Girls," about her former husband, Plaintiff Stephen Belafonte ("Mr. Belafonte"), a well-known producer and talent manager. Ms. Brown is a resident of the United Kingdom, although she does some work in the United States. Mr. Belafonte is a Florida resident. The former couple has one daughter together, M.B., who resides with Mr. Belafonte in Florida.

Mr. Belafonte and Ms. Brown began dating in 2006 and were married from June 2007 until August 2018. Mr. Belafonte alleges that, following their divorce, Ms. Brown made 41 defamatory and false statements against him, including that he abused her during their relationship. According to Mr. Belafonte, Ms. Brown made the statements in her memoir, Brutally Honest, in her Instagram posts, and in public appearances. {As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff's Complaint as true.}

In Brutally Honest, originally published in 2018, Ms. Brown wrote that she knew "what it's like to be beaten down … punched, humiliated and isolated" and that she "was exhausted … by seven years of what felt … like constant emotional abuse, mind games, degradation, threats and sexual exploitation." Ms. Brown wrote that when she met Mr. Belafonte, she "had a house and a loft apartment in Los Angeles and a good career" and when she left him, she "had less than $1,000 in the bank." Mr. Belafonte alleges that Ms. Brown's statements and implications about him were factually inaccurate and demonstrably false. Around December 2022, Ms. Brown discovered that Malu Trevejo ("Ms. Trevejo"), a Miami-based recording artist previously managed by Mr. Belafonte, was suing Mr. Belafonte for alleged financial abuse. Afterward, Ms. Brown shared TMZ posts discussing Ms. Trevejo's case, which also contained pictures of Mr. Belafonte and Ms. Trevejo on her Instagram stories. Ms. Brown overlaid the posts with supportive messages including, "[t]his man MUST be stopped[,] "@malutrevejo your story is my story and I'm STILL living threw [sic] it[,]" and "@malutrevejo standing up for ALL the women he exploits and STILL abuses, that's me included let's stand strong together and stop his #abuse[.]" {The Court only provides a sample of the 41 defamatory statements alleged in the Second Amended Complaint.}

In January 2023, Ms. Brown embarked on a publicity tour in support of the release of the new edition of Brutally Honest, which was published in 2024. The new edition contains the original book's information and additional material. In support of her book, Ms. Brown appeared on popular U.S. television shows including, LIVE with Kelly and Ryan, the Tamron Hall Show, and CNBC. During these broadcasts, Ms. Brown repeated her abuse allegations about Mr. Belafonte. For example, during a January 18, 2023 appearance on LIVE with Kelly and Ryan, Ms. Brown stated, "put aside … the physical abuse, the coercive control, the financial control, I was left just in bits and pieces." On March 26, 2024, while appearing on the Tamron Hall Show, Ms. Brown said, "I was not only abused on different levels, but also financially abused[.]" On August 30, 2024, in an interview with CNBC Conversation, Ms. Brown stated, "I've been abused on every single level."

The question at this stage is whether Brown is subject to the jurisdiction of a court in Florida, and the court said no:

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Tariffs

Trump Expands Illegal Section 338 Tariffs Against Canadian Imports - and Bans Some Entirely

The move further escalates this harmful and illegal trade war with a vital ally.

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President Donald Trump rips a paper in half, with the U.S. flag on one side and the Canadian flag on the other.
Illustration: Midjourney

Yesterday, Donald Trump further expanded his illegal Section 338 tariffs against Canadian imports and banned importation of some Canadian products entirely. The pretext for the move is Canada's predictable imposition of counter-tariffs in response to Trump's initial Section 338 moves. Georgetown University trade policy expert Peter Harrell has a helpful summary of the new restrictions Twitter/X:

1. Trump signed a variety of proclamations this evening retaliating against Canada's retaliation against Trump's initial Section 338 tariffs, now that the Canadian retaliatory tariffs have come into force. Trump's action includes outright bans on a handful for products as well as modifications of the 50% tariff list to reduce the impact on certain U.S. industries while adding new products to the tariff list to avoid an overall reduction in U.S. tariffs.

2. The bans: In a spate of bad news for American aficionados of Canadian booze, Trump has banned import of Canadian beer, wine, and distilled spirits, effective Sept. 29. He also banned whey and molasses, and motorcycles. (This last item presumably includes the three wheel "Can-Am" made by a subsidiary of Bombardier, the airplane manufacturer Trump has been targeting on social media).

3. Section 338 authorizes the President to ban imports if, following the imposition of Section 338 tariffs, the President finds as "a fact that any foreign country has not only discriminated against the commerce of the United States….but has, after the issuance of a [tariff action], maintained or increased its said discriminations against the commerce of the United States…" While Trump appears to be the first President to impose tariffs under Section 338 (since Congress passed it in 1930), the language of 338 does seem to authorize the import bans *if/assuming the underlying Section 338 tariff actions are lawful.* (As I have written elsewhere, I think there are good legal arguments against the underlying Section 338 tariff actions, but so far, no one has brought a suit).

4. Trump also modified the products impacted by the original 50% Section 338 tariffs to remove certain products where the tariffs had proved economically painful to the U.S., such as salt, cement, toilet paper, and fishing rod parts, while adding other products, such as various paper products, metals, motorboats, and cheeses. (This highlights that while the Administration does seem committed to the trade war with Canada, it is monitoring potential adverse economic consequences). The tariff modifications are effective Sept. 15.

As Peter notes, the legality of these new actions largely depends on the legality of the original Section 338 tariffs against Canada. And for reasons I summarized in a previous post, those original tariffs are illegal for multiple reasons, both because Section 338 itself has been superseded by later laws, and because the Trump tariffs against Canada don't meet the requirements of Section 338 itself. For an extensive discussion of the latter issue, see this excellent guest post  by Peter Harrell and Jennifer Hillman.

Last night's expansion of the Section 338 tariffs and imposition of unprecedented categorical bans on some imports may help strengthen the legal case against Trump's actions, by underscoring the vast scope of the authority he is claiming. This, in turn, strengthens the potential argument that these tariffs run afoul of the "major questions" and nondelegation doctrines, which restrict executive branch claims to sweeping delegated authority, and played a key role in the Supreme Court's ruling against Trump's earlier IEEPA tariffs.

Like the earlier Section 338 tariffs, this expansion will harm the US economy, raise prices for consumers, undermine the separation of powers, and further poison relations with a key ally. Other than that, it's a great idea!

UPDATE: Reason's Eric Boehm has a helpful overview of the expanded Section 338 trade restrictions here.

Free Speech

Sound of da Harassment Prosecution

Defendant's playing "the KRS-One song entitled 'Sound of da Police' at a high and disruptive volume from her vehicle while simultaneously directing offensive, suggestive, and threatening remarks toward the complainant near the complainant's home" "may reasonably be interpreted as intended to alarm, annoy, threaten, or harass."

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From N.Y. (Town of Patterson) Justice Court judge Michael Caruso in People v. Lando, decided in April:

This prosecution … [is for] Harassment in the Second Degree in violation of Penal Law § 240.26(3), which is a violation [i.e., a petty offense punishable by no more than 15 days in jail -EV].

The complainant alleges, based upon personal knowledge, that on May 30, 2025, at approximately 5:30 p.m., Defendant stopped her vehicle in front of the complainant's driveway and played music at an excessive volume, causing annoyance and alarm. The complainant further alleges that the music included the phrase "it's the sound of the police," and that this conduct, as a whole, was undertaken in response to the complainant's prior report to law enforcement concerning Defendant's alleged excessive noise. According to the information, Defendant then backed up her vehicle and shouted to the complainant, "Why don't you call them [the police] for me being too loud." …

The supporting deposition alleges that on May 29, 2025, an individual identified as "Frank" drove past the complainant's residence and shouted vulgar and offensive language, including "Fucking faggot!" It further alleges that, later that same day, the same individual parked his vehicle in the roadway, thereby obstructing the complainant's wife from operating her vehicle, while staring at her and her daughter.

The supporting deposition further alleges that on May 30, 2025, the same individual again drove past the complainant's residence, shouting additional vulgar and offensive remarks, including "Gay fuck," directed at the complainant. It is also alleged that Defendant engaged in a course of conduct over a time period, including parking her vehicle conspicuously near the complainant's residence for extended periods with the windows down while playing loud music, specifically the song "Sound of da Police" by KRS-One, and operating her vehicle at excessive speeds along the roadway….

The court denied defendant's motion to dismiss the prosecution. It concluded that defendant's alleged conduct could qualify as second-degree harassment, defined as "engag[ing] in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." And the court concluded that the defendant wasn't protected by the First Amendment:

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