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Donald Trump

Ninth Circuit Rules Trump Illegally Federalized National Guard in Los Angeles

The ruling is an important decision on judicial review of executive invocation of emergency powers to use the military for domestic law enforcement.

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Members of the Texas National Guard assemble at the Army Reserve Training Center in Elwood, Illinois
Texas National Guard members in Illinois (Brian Cassella/TNS/Newscom)

 

On October 23, in the case of Newsom v. Trump, the US Court of Appeals for the Ninth Circuit ruled Donald Trump's June 2025 federalization of the National Guard in Los Angeles was likely illegal. This decision has little immediate effect, because the National Guard deployment ended months ago, after the Supreme Court ruled against Trump in a related Illinois case. But it has important implications for judicial review of executive invocation of emergency powers to use the military domestically. Among other things, it emphasizes that such actions are reviewable, and the president should get only limited deference. It also adopts a properly restrictive definition of "rebellion" (which is one of the conditions that might justify federalization of the National Guard).

Trump federalized the Guard in response to anti-ICE protests. The district court ruled his action was illegal and issued an injunction blocking it. But the Ninth Circuit lifted the preliminary injunction, in a decision I criticized at the time.

The relevant statute 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

Last year, the Ninth Circuit ruled (incorrectly, I think) that Trump's action might have been permissible under Subsection 3: a situation where "the President is unable with the regular forces to execute the laws of the United States." As the Ninth  Circuit acknowledges in their most recent decision, this basis for Trump's actions was undermined by the Supreme Court's December ruling in the related case of Trump v. Illinois, which held that Subsection 3 can only be invoked when the president is authorized to use regular federal military forces to enforce the law, and those forces are inadequate. These circumstances do not apply to anti-ICE protests in Los Angeles and Chicago.

No one claims that the situation in Los Angeles amounted to an "invasion" by a "foreign nation." Thus, in its most recent decision the Ninth Circuit considered whether Trump's actions were authorized by Subsection 2, which allows federalization of the guard when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States."

The majority opinion by Judge Jennifer Sung holds that the determination that there is a "rebellion" is subject to judicial review and can be invalidated " if it "did not reflect a colorable assessment within a range of honest judgment." I think this is overly deferential. For reasons I outlined in an article published last year, there should be little or no deference when the executive invokes extraordinary emergency powers. Still, the Ninth Circuit standard is far from a blank check, and does allow invalidation of executive actions where the claim of rebellion is blatantly wrong - as it was here.

Following the district court, the Ninth Circuit defined  "rebellion" as "a violent, armed, organized, open and avowed uprising against the government as a whole." This differentiates "rebellion" from smaller-scale violence or other violations of law. I think that definition is largely correct. The court summarizes a wide range of historical evidence supporting it.

The Ninth Circuit also concluded that events in Los Angeles did not even come close to meeting that standard. There were some violations of law by protestors, and some small-scale violence. But no systematic effort to overthrow the government or anything close to it. If anything, both this issue and the definition of "rebellion" are easier calls than the court suggests.

Judge Sung, author of the majority opinion, is a liberal Biden appointee. But her opinion was joined by Judge Eric Miller, a conservative Trump appointee and onetime clerk for Supreme Court Justice Clarence Thomas. This suggests the issue here cuts across ideological and jurisprudential lines. Judge Mark Bennett, another Trump appointee, dissented, but mostly on procedural grounds.

Judge Bennett did also take issue with the majority's conclusion that if Trump's federalization of the National Guard exceeded his statutory authority, it also violated the Tenth Amendment, which reserves to the states or to "the people," those "powers not delegated to the United States by the Constitution." He argues that the power to call forth the National Guard is delegated to Congress by the Calling Forth Clause of the Constitution, which gives Congress power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." This is true enough. But in situations where Congress has not exercised that authority, states retain total control over their militia (of which the National Guard is the principal modern example), and that control is protected by the Tenth Amendment. Indeed, such control over state military forces is a central element of state sovereignty. Overriding it without proper constitutional authority qualifies as unconstitutional "commandeering" of state government forces. As the majority explains:

The federal government—whether the President or Congress—violates the Tenth Amendment by commandeering state personnel to enforce or administer federal law. Printz v. United States, 521 U.S. 898, 925 (1997) (Under the Tenth Amendment, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."). If, for example, the President commandeered state police to help federal officers enforce federal immigration laws, that would violate the Tenth Amendment….

California National Guard members are state personnel, unless properly federalized… The President purported to convert the Guard into federal personnel by issuing federalization orders. If those federalization orders had been valid, then the President would have deployed federal officers in Los Angeles, and no commandeering of state personnel would have occurred. But because the President lacked authority to federalize the California National Guard, the federalization orders were invalid, and the deployed Guard members remained state personnel….

In other words, because the deployed members of the California National Guard were not properly federalized, they remained the legal equivalent (for Tenth Amendment purposes) of the state police. And because the challenged executive orders compelled those state officers to help federal officers enforce federal law, the orders violated the Tenth Amendment….

The Tenth Amendment protects States against overreach by the "Federal Government," whether "by legislation or executive action." Printz, 521 U.S. at 925, 935. The President cannot command state officials to enforce federal law even if a federal statute would authorize him, under some other circumstances, to call those officials into federal
service. If the statute did not authorize the President to federalize the California Guard members here…, then the federalization orders were invalid, the Guard members remained state personnel, and Defendants violated the Tenth Amendment
by commandeering those state personnel to administer federal immigration laws.

Exactly so. The majority and dissent  consider a number of procedural issues, which I will not try to address. The majority also parses a variety of relevant precedents in detail. I may have more to say about some of them in future writings.

For the moment, this decision has little immediate effect. But it sets an important precedent in favor of judicial review of executive invocation of emergency powers, and on the meaning of "rebellion."

Bob Woodward Reveals He Spoke With Justices Stewart, Powell, White, Blackmun, and Rehnquist for "The Brethren"

Steven Goldberg, one of Brennan's clerks, provided Woodward with the 75-page case history of U.S.v. Nixon.

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Bob Woodward is publishing a new book, titled "Secrets," that reveals many of the reporter's sources. The Washington Post has published an in-depth profile.

Of special interest are the sources Woodward relied on with Scott Armstrong for The Brethren (1979).

In the memoir, Woodward clears up another decades-long mystery: Which Supreme Court justices talked to him for the 1979 bestseller "The Brethren"? The exposé of the inner workings of the nation's highest court under Chief Justice Warren Burger electrified Washington.

When the book was published, Woodward and his co-author, Scott Armstrong, disclosed that they had interviewed five of the nine justices on the court, as well as 170 former law clerks, but on the condition that they not be named. Given the court's reputation for maintaining a Sphinxlike silence, "The Brethren" ignited a guessing game in Washington and in legal circles around the country, as well as criticism over the book's heavy reliance on anonymous sources.

"Our use of unnamed sources was a huge point of controversy for the book, but in my 55 years of reporting experience, people rarely shared secrets on the record, particularly at the time something is going on," Woodward writes in his memoir.

Nearly a half-century later, Woodward finally names the five justices who granted interviews: Potter Stewart, Lewis Powell, Byron White, Harry Blackmun and William Rehnquist (all are now deceased). Woodward's memoir explains how he and Armstrong painstakingly cultivated the justices and their former clerks as sources. The authors kept long memos about the interviews, which Woodward draws on to quote the justices at length in his new book.

It is curious that Woodward's sources were all the conservatives on the Court. (During the late 1970s, even after Roe v. Wade, Blackmun was still considered a conservative.) Woodward apparently did not talk with Justices Brennan, Marshall, or Stevens. Indeed, throughout the entire WaPo piece, nearly every one of Woodward's sources were conservatives. (I'll go through more of them below). I wonder what Chief Justice Burger would think if he knew that the other three Nixon appointees were the sources of the leaks.

Yet, even if Brennan did not talk directly to Woodward, one of Brennan's clerks leaked the critical document about the Watergate Tape Case. Steven Goldberg clerked for Brennan during the 1974-75 Term. Goldberg's co-clerk was Judge Marsha Berzon.

Woodward also tells the story of how got his hands on an internal Supreme Court document that was a cornerstone of "The Brethren": a confidential 75-page case history chronicling the justices' tense deliberations in U.S. v. Nixon. In an 8-0 decision, the court ruled in the 1974 landmark case that Nixon had to turn over his secret tape recordings in response to a federal subpoena and that, most importantly, the president is not above the law.

In "Secrets," Woodward writes that he learned about the existence of the case history from Steven P. Goldberg, a former Supreme Court law clerk who died in 2010. But Goldberg was adamant: He couldn't possibly give Woodward a copy.

Woodward wheedled and coaxed and pleaded. Despite Goldberg's repeated protestations, Woodward talked the clerk into letting him pay a visit to his home late that night.

Goldberg still refused to cough up the document, however, so Woodward suggested a compromise: How about you read it aloud while I take notes?

"My plan was to wear him out until I either had enough of it down or he eventually gave it to me," Woodward recalls.

With a sigh, Goldberg started reading from a comfortable living room chair. Woodward smiled and took notes — but he did so very, very slowly and kept asking Goldberg to pause.

After a while, Goldberg fell deeply asleep. Woodward contemplated grabbing the case history from his lap and bolting out the front door, but "that seemed a little too far, even for me," he recalls.

Instead, he walked over to Goldberg, gave him a slight nudge and informed him that he would take the document and bring it back first thing in the morning.

Goldberg stirred with a look of "absolute exhaustion" on his face, according to the memoir. But the former clerk mumbled okay — and that was good enough for Woodward.

"Not wanting to disturb him more, I gently took it. I did not want to run out the door but I moved swiftly," he writes. "If I was on a security camera, I wanted to be behaving properly, with whatever might be left of my dignity."

Woodward scampered home to read the whole thing. The case history proved invaluable, a "raw and unforgiving" and "Holy Grail" account of the court's inner workings.

Before returning it to Goldberg the next day, he stopped at The Post's newsroom to make a photocopy.

One wonders if Justice Brennan tacitly or expressly authorized this leak, so long as the document was not provided. While the Chief Justice would often warn that leakers would have their careers ruined, Goldberg did not suffer at all. He would become a law professor at Georgetown, advocating for a strict separation of church and state. Goldberg died in 2010.

I doubt Josh Gerstein had to take notes while someone read him the Dobbs opinion aloud.

There's more. Boyden Gray, a prominent conservative lawyer, was a regular source for Woodward:

One such leaker was C. Boyden Gray, who served as White House counsel to George H.W. Bush during Bush's presidency and vice presidency. Woodward describes Gray, who died in 2023, as "one of my lifelong secret sources." He also lived just a block and a half away from Woodward in Georgetown, which made passing sensitive documents much easier.

One Friday in February 1987, as the Iran-contra scandal was unfolding, Gray walked over to Woodward's house bearing a gift: a three-page memo labeled "top secret" regarding an Israeli official involved in the sale of U.S. arms to Iran. According to Woodward, the document contradicted the Reagan administration's public assertions about the scope of its contacts with Iran, and even he wondered at first why Gray had given it to him. He said Gray later explained that "he knew the memo would get out" eventually and "he wanted to get ahead of it."

Woodward also reveals that President Nixon's lawyers leaked information about their client.

As Nixon's defense counsel, Buzhardt listened to hundreds of hours of conversations that the president had secretly taped in the White House but resisted turning over to prosecutors until he was finally ordered to do so by the Supreme Court. In public, Buzhardt vigorously defended Nixon and was seen as "the operational man in charge of the Watergate cover-up," according to Woodward. In private, however, his assessment of Nixon was caustic.

"He flat out lies," Buzhardt told Woodward during one of 17 interviews that took place in 1974 and 1975. "He still to this day thinks that he was not involved in the cover-up."
During the height of Watergate, Garment regularly met Woodward for interviews at a Chinese restaurant in downtown Washington and once brought along a briefcase filled with what the lawyer called "the really incriminating tapes." In the memoir Woodward doesn't say whether he was able to listen to them, but he writes that Garment called the recordings "infantile" and "sick." Through them, he added, Nixon was "letting America into the toilet of his mind."

Of all the leaks, these bother me especially. Lawyers have a duty of confidentiality. If they no longer could ethically represent a client, their recourse was to withdraw. It is unconscionable for lawyers to defend their client in court while undermining their client in the press. You wonder why Trump relies on lawyers he can trust. Because those he cannot trust are likely to attack him in the media. Not much has changed.

I've pre-ordered the book, which will be released in November. I am curious about details concerning his SCOTUS chats.

Free Speech

Harassment Restraining Order Based Largely on Speech Critical of Zoo Veterinarian,

vacated on First Amendment grounds by a Massachusetts appellate court.

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From E.B. v. J.R., decided Aug. 20 by Massachusetts Appeals Court Justices Sabita Singh, Rachel Hershfang, and Chauncey Wood:

The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care. The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice….

When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "that the defendant had committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.'" …

Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either "true threats" or "fighting words." True threats include "direct threats of imminent physical harm" and "words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." Fighting words are limited to personal insults that are inherently likely to incite a violent reaction….

The plaintiff's affidavit described the following four alleged incidents of harassment.

First, in July 2024, while the plaintiff was working at the zoo, the defendant began "yelling and screaming" at the plaintiff that she "should lose [her] job and right to be a veterinarian[,] … that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals."

Read More

Tariffs

Trump Exempts Some Canadian Products From Section 338 Tariffs—But His Illegal Trade War Continues

Courts should still strike down the Section 338 tariffs and import bans that remain in place.

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An American flag breaks with a Canadian flag
Illustration: Midjourney

Last week, the Liberty Justice Center (the public interest group I worked with on the case challenging Trump's earlier IEEPA tariffs, which led their invalidation by the Supreme Court)  filed the first lawsuit challenging President Donald Trump's massive Section 338 tariffs against a variety of Canadian imports. Three days later, Trump exempted some previously covered Canadian products from the tariffs, probably to help Maine Sen. Susan Collins and other congressional Republicans fearful of voter backlash in the upcoming midterm election:

President Donald Trump signed a proclamation on Friday that removes some Canadian products from tariffs imposed under Section 338 of the Tariff Act of 1930 and adds others, the White House said. The changes take effect Oct. 30.

Plywood sheets, some paper products, certain machinery and refrigeration equipment, and certain packing crates and boxes come off the list. Some valves, along with carpets, waste products and other goods, take their place.

The tariffs, set at 50% according to CNBC, apply whether or not a good originates under the U.S.-Mexico-Canada Agreement….

The fact that American businesses and consumers in states like Maine are suffering from the tariffs gives the lie to the notion that only foreigners are burdened by them. Trump's action here also underscores how the tariffs have become highly unpopular, and a drag on GOP prospects in the upcoming election.

While Trump may have (perhaps only temporarily) lifted some of the Section 338 tariffs, most remain in place. As noted above, he  imposed additional tariffs on some goods, even as he lifted them on others. And the Section 338 tariffs are still still illegal for a variety of reasons I summarized in my previous post on the LJC lawsuit against them, as well as earlier writings:

I have previously written about why Trump's Section 338 tariffs are harmful and illegal. See my recent Montreal Economic Institute paper on this topic, and earlier pieces here, here, and here. To briefly summarize, the tariffs on Canada are illegal because 1) Section 338 has been superseded by later legislation, 2) even if Section 338 is still operative, Trump's tariffs do not meet its requirements because the Canadian actions they supposedly respond to do not "discriminate" against US goods, as the law requires, 3) Trump's tariffs do not "offset" the Canadian actions (as Section 338 also requires), but go far beyond that, 4) the administration's interpretation of Section 338 runs afoul of the "major questions" doctrine, and 5) if Section 338 is operative and does authorize the Trump actions, it would violate the constitutional nondelegation doctrine (which restricts delegation of legislative power to the executive).

The LJC complaint advances all five of these arguments. To prevail, they need win on only one.

Trump has also used Section 338 to ban some Canadian imports entirely. That too is illegal, though the bans (unlike the tariffs) are not directly at issue in the LJC case. They may well be challenged in future litigation, however.

In addition to illegally usurping congressional power over taxation, the Trump trade war against Canada damages our economy and poisons relations with a key ally. Courts should strike it down, just as they did with the IEEPA tariffs and the more recent Section 122 tariffs. They should also invalidated the massive Section 301 "forced labor" tariffs, which have been challenged in three cases currently before the US Court of International Trade.

UPDATE: It's worth reiterating that giving one person the power to impose and lift tariffs whenever he feels like it is an affront to the rule of law.

Politics

"AI Deepfakes in Court"

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Damien Charlotin, who runs the invaluable AI Hallucination Cases site (2200+ cases worldwide and counting) has a new one, AI Deepfakes in Court, listing 26 cases worldwide so far. His summary:

This database tracks decisions dealing with deepfakes submitted as evidence, averred or alleged, including texts and documents such as forms, records and correspondence. A failure to authenticate an exhibit is recorded separately from any finding that it was AI-generated.

It does not track cases about deepfakes as a subject: the focus is on cases started on any ground, where parties (allegedly or verily) submitted deepfakes as evidence to bolster their claims. This is distinct from using AI to fabricate citations, which is covered by the AI Hallucination Cases database, or using AI as evidence (e.g., to offer a translation or a common sense opinion), which is covered by the AI Evidence Cases database.

Nominations Sought for Harold Berman Law & Religion Award

Information on how to nominate an excellent paper on law and religion.

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For the next month, the AALS Section on Law & Religion is accepting nominations for the Harold Berman Award. Here is the text of the announcement:

The AALS Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that "has made an outstanding scholarly contribution to the field of law and religion," in the words of the prize rules. To be eligible, a paper must be published between July 15, 2025 and July 15, 2026. The author must be "a faculty member at an AALS Member School with no more than 10 years' experience as a faculty member." Fellows are eligible, and self-nominations are accepted, though members of the AALS Law & Religion Section Board are not eligible. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by November 18, 2026. The winner will receive an award plaque and be recognized at the section's program at the AALS annual meeting in January 2027.  Thanks to the members of the Prize Committee: Rick Garnett (Notre Dame), Nelson Tebbe (Cornell), Richard Albert (Texas), Brandon Paradise (Rutgers), Leslie Griffin (UNLV), and Anna Su (Toronto).

Why Would Trump Make A Deal With A Judge Who Ruled Illegal Aliens Have A Right To "Locomotion" In The United States?

And does Todd Butler agree with Judge Southwick that denying a bond hearing to illegal aliens is an affront to freedom “at its most basic”?

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Today the en banc Fifth Circuit ruled that illegal aliens do not have a constitutional right to a bond hearing pending deportation. The vote was ostensibly 10-7, although the vote is better characterized as to 9-8. Judge Richman only concurred in judgment. As I've said many times before, the en banc Fifth Circuit is effectively split on a razors-edge.

Guess which judge wrote the lead dissent finding that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? I'll give you a hint: it's the same judge that President Trump made a deal with to pick his own replacement.

Let's start with Judge Ho's concurrence:

A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).

According to our dissenting colleagues, however, illegal aliens have not only a de facto constitutional right to remain in our country unlawfully, but an incentive to make this their home. That's because, to quote the principal dissent, once an alien has "acquired a domicil or residence" in America, it no longer matters that they are breaking the law to be here—their detention becomes an offense to "'liberty' . . . at its core," and an affront to freedom "at its most basic," namely, "freedom from physical restraint." Post, at 101, 102, 115 (Southwick, J., dissenting). So they must have "the power of locomotion" and the right to roam freely "to whatsoever place one's own inclination may direct." Id. at 102, 103 (quoting 1 William Blackstone, Commentaries on the Laws of England 130 (1769)).

Judge Southwick's dissent was joined by Judges Stewart, Graves, Higginson, Douglas, and Ramirez--all of the Democrat-appointed judges on the court. Judge Richman concurred in the judgment. Judge Haynes did not join the dissent. She did a bit more than her usual practice on the en banc court of saying nothing--a topic for a future post--and actually wrote a full paragraph.

Why would the Trump Administration actually trust Judge Southwick to pick a replacement who would even be marginally conservative?

Does Todd Butler agree with Judge Southwick that denying a bond hearing to illegal aliens is an affront to freedom "at its most basic"? Does Butler agree with Judge Southwick that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? Would Butler compare, as Judge Oldham noted, "modern-day immigration detention to the Tower of London, where English monarchs would 'secretly hurry[a man] to gaol, where his sufferings are unknown and forgotten,' and where clandestine detention was worse than 'open despotism.'"

Would Butler possibly agree with this passage from Judge Ho:

Americans like to boast that we live in a country where no one is above the law, not even the President. But if that is so, then there's no denying that these habeas petitions, far from affirming American liberty, are profoundly un-American—because they send the message that the only people who are above the law in our country are the ones who violated our laws to get in.

Consider a world where Judge Butler was on the court. Imagine that Senior Judge Southwick was on the original three-judge panel (he was in fact on the three-judge panel). Remember, Judge Richman only concurred in judgment, as she disagreed with the majority's habeas ruling. With this divide, the whole court would have split 9-9 on the constitutional question. And that is the cost of allowing Judge Southwick to stay on the court and giving Judge Butler another vote. As I noted before, "I would prefer Judge Southwick to have one vote rather than two votes."

For people who actually care about the en banc Fifth Circuit, and not just maximizing the number of total Trump circuit court appointments, the Butler nomination is an unforced error. Let Judge Southwick keep extolling the constitutional rights of illegal aliens from his chambers in Austin. He's choosing Texas, I can tell. At some point, adverse possession kicks in, right?

And for those keeping track at home, Mississippi has three circuit judges for about three million people and Texas has nine circuit judges for more than thirty million people. The math just doesn't math. Hillary Clinton said the Supreme Court should be expanded to thirteen so that there could be one Supreme Court Justice for each circuit. (Because of course the Federal Circuit needs its own circuit justice.) If that's the case, then make Texas its own circuit to justify yet another Supreme Court justice. That math does math!

Politics

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

Rebellions, rebels without a cause, and military discounts.

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

New case! In Feb. 2025, federal agents raided IJ client Mario Ayala Cruz's check cashing and money transfer business in Glendale, Ariz., seizing computers, cell phones, documents, and over $450k in cash and checks. And then … nothing. Mario, who runs the business (by the book) with his wife and adult children, has not heard anything for 20 months. No charges have been filed, and the feds are way past the 60-day deadline to either initiate civil forfeiture or return the property. Which violates the Fourth Amendment and federal law—and was extra crummy because it forced Mario to cut short his final visit with his dying father in Mexico. Click here to learn more.

New on the Short Circuit podcast: We get a Rocky Mountain high at the Tenth Circuit Bench & Bar Conference. Learn all about what makes the circuit tick from the experts we met there, including our first guest from a circuit historical society.

  1. For decades, federal guidance has limited immigration enforcement at "sensitive locations," including houses of worship. Recently, DHS and ICE release new policy guidance allowing "discretion" and "case by case" decisions regarding enforcement at churches, synagogues, and mosques. Religious organizations sue. D.C. Circuit (over a dissent): And they have standing.
  2. After spending 7.5 years in pretrial detention at Rikers, man is finally sentenced to a max of 7 years—time to let him out! But prison officials drag their feet for another 17 days. Second Circuit: Case undismissed. He plausibly alleged the city and its officials are turning a blind eye to overdetention.
  3. Sure, says two-thirds of this Third Circuit panel, the plaintiff church has shown a good bit of evidence that Collier, Penn. officials rejected its application to build a 13k-square-foot shrine out of animus towards the church's pro-life advocacy, but that doesn't mean it gets a preliminary injunction because there's absolutely nothing "preliminary" about building a 13k-square-foot shrine. Read More

Alaska

Trump Sues to Block Alaska Senate Election Results Because of Potential Voter "Confusion"

The administration claims voters might be confused between two candidates named "Dan Sullivan."

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Sen. Dan Sullivan (R-Alaska). (US Senate)

 

Today, the Trump Justice Department filed a federal lawsuit seeking to block Alaska Senate election results on the grounds they might be influenced by voter "confusion" between incumbent Republican Senator Dan S. Sullivan and a separate Republican candidate with a very similar name (Dan L. Sullivan). I previously wrote about the issues raised by the two Dan Sullivans here. As I pointed out in the earlier post, there is no legal basis for overturning congressional election results based on voter confusion, and any such action would likely violate the First Amendment. See also this analysis by election law specialist Rick Hasen.

I would add that any such federal action also runs afoul of states' primary authority over election procedures. The Elections Clause of the Constitution gives states primary authority over "The Times, Places and Manner of holding Elections for Senators and Representatives," subject to Congress' power to modify these rules by legislation. Congress has not enacted any statute allowing overturning of election results based on possible "voter confusion."

If "voter confusion" were a legitimate reason to overturn election results, that would imperil a great many election winners, as voter ignorance - and exploitation thereof by candidates - is a widespread and longstanding problem. I covered some of these points in my previous post about the two Dan Sullivans:

Donald Trump is a particularly egregious example, going all the way back to his first campaign in 2016, and more recently with his lies about the 2020 election and other issues. But more conventional politicians also often resort to lies and deception, even if not to the same degree.  President Obama, for example, famously  lied when he claimed that, under the Affordable Care Act, "if you like your health care plan, you can keep it." That deception won the 2013 Politifact Lie of the Year award. But it still helped Obama get reelected in 2012. I am not sure exploiting voter confusion about names is any worse than exploiting their ignorance about policy issues like crime, immigration, and health care….

Ultimately, both exploitation of voter confusion about names and other deceptions used in campaigns seek to exploit widespread voter ignorance. Because of the combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation),  most voters know little about government and public policy, and often do a poor job of evaluating the information they do know. This makes them vulnerable to deception and manipulation, and incentivizes politicians to lie and otherwise distort the truth.

Voter confusion about candidates with similar names is just another example of this broader problem….

There is no easy solution to the problem of voter ignorance. But I assess a range of possible options in my 2023 article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my earlier book Democracy and Political Ignorance. I believe the best approach is to make fewer decisions at the ballot box and more by "voting with your feet," where incentives to seek out information and evaluate it wisely are much better. But I  recognize that any effective approach will take time, and there may be no one fix that is sufficient by itself.  We may need to pursue multiple strategies. In the meantime, voters are likely to continue to be ignorant and confused about a variety of issues, and politicians and interest groups are likely to keep on exploiting that.

Many of these other voter ignorance problems are far worse than any potential confusion between candidates with similar names, a problem that only comes up relatively rarely.

UPDATE: Rick Hasen has a helpful analysis of the Alaska lawsuit here:

DOJ has no power to decide which candidates can appear on the ballot. The sole basis that DOJ asserted for trying to block the state's certification process is the National Voter Registration Act's preamble that reads that the act is designed to "protect the integrity of the electoral process." That preamble of course gives no power whatsoever to the federal government to do anything. It does not give DOJ the power to determine ballot access or block certification of a federal election. The Alaska Supreme Court decided the state law ballot access question back in June, allowing the second Sullivan to appear on the ballot.

AI in Court

"The District Court—or Perhaps, Being Charitable, Its AI Agent—Ignored and Manipulated Governing Law, Apparently to Satisfy a Policy Agenda"

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A short excerpt from the long opinion in Jackson Fed. of Teachers v. Fitch, decided yesterday by Fifth Circuit Judge Jerry Smith, joined by Judge Kurt Engelhardt:

In April 2025, Mississippi enacted House Bill 1193 (H.B. 1193), a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion ("DEI") initiatives and similar controversial programs. The law prevents government-run institutions from requiring activities such as diversity training or pushing DEI ideology, so defined, in the course of government-funded business.

H.B. 1193 does four main things. First, it prevents educational institutions from mandating DEI programs and diversity trainings in a variety of contexts. Second, it stops public educational institutions from punishing students for their views on DEI. Third, it prohibits regulated institutions from endorsing or promoting DEI through course materials. Finally, it prevents institutions and their educators from otherwise engaging in DEI methods or actions, preventing bad actors from circumventing prohibitions and frustrating its purposes. The statute also creates an administrative process to handle claims that a given educational institution is not in compliance. H.B. 1193 excepts several activities from its sweep, including scholarly work, the activities of students and their groups, and creative engagement.

Plaintiffs sued, claiming (among other things) that the law violated the First Amendment, but:

The proceedings in the district court were a botch job, to say the least. Judge Henry Wingate issued a temporary restraining order ("TRO") enjoining enforcement of H.B. 1193 that contained several factual assertions nowhere to be found in the record, or indeed, in any proceeding of the case. Those included mention of plaintiffs and defendants not in the complaint, supposed "declarations" from non-existent or never-present individuals, false quotations purporting to be taken from the text of H.B. 1193, and several erroneous claims that the law had already led to the demise of apparently fictitious programs.

After this came to light, Judge Wingate replaced the TRO without explaining.

Forging forward despite the bungled TRO, Judge Wingate issued a pre-enforcement preliminary injunction. The various state defendants appeal.

At oral argument in this court, it was discovered that even the "corrected" TRO—which was incorporated by reference into the preliminary injunction order—still contained hallucinated information (namely, a citation to a purported Fourth Circuit case, "Cousins v. School Bd. of City of Norfolk," that does not exist).

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