Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
8/16/1933: President Roosevelt adopts the Code of Fair Competition for the Governance of the Petroleum Industry. The Supreme Court declared those codes unconstitutional in Panama Refining Co. v. Ryan (1935).
What’s on your mind?
I am generally pro-Israel. But these actions amount to ethnic cleansing and gross violations of property rights.
As a general rule, I support Israel in its conflicts with adversaries like Hamas, Hezbollah and Iran. While I am no great fan of either the present Israeli government or the ideology of Zionism, Israel upholds liberal democratic values to a far greater extent than any of its enemies, and their victory would be a terrible catastrophe. Thus, I've even gone so far as to argue that it is a mistake for the Israelis to make hostage exchange deals with groups like Hamas, because doing so encourages more more terrorism.
But it is also important to remember that not all Israeli actions are just, and that Palestinian Arabs also have human rights that must be respected. This is one of those times where these points must be emphasized. Over the last few years, Israeli settlers on the West Bank have repeatedly attacked Palestinians living there, seeking to force them off their land. These actions are deeply unjust, amounting to ethnic cleansing and gross violations of private property rights. They also highlight broader dangers of ethno-nationalist claims to exclusive control over land.
The Times of Israel (a center-right Israeli publication) has a helpful overview of the recent settler violence:
Mahmoud Tubasi has not lived in his home in the village of Jalud, south of Nablus, since late July, after fleeing following weeks of settler violence…
Tubasi built the house some seven years ago on land owned by his family on the outskirts of Jalud. The property sits in Area B, where, under the Oslo Accords, Israel maintains security control while the Palestinian Authority is responsible for civilian affairs….
For nearly seven years, he and his family, including his two children and grandchildren, lived there peacefully, he said. But in April, some four months ago, settlers began targeting the home, first setting fire to it and then laying siege to Tubasi and his family.
On July 22, after his pleas for help went unanswered, the family fled. Watching from afar, Tubasi has since seen settlers moving around his home….
In recent years, settler extremists in the West Bank have stepped up campaigns of harassment and violence aimed at driving Palestinians from their homes, sometimes displacing whole communities….
Over the three years from January 2023 through April 2026, some 5,900 people in the West Bank were displaced from their homes due to settler violence, the UN Office for the Coordination of Humanitarian Affairs said in early July.
The figure includes mostly Bedouins (and some Palestinian farmers) living in what the UN defines as "communities." According to the UN, 45 such communities were completely displaced and another 72 were partially displaced.
In some cases, settlers subsequently established illegal outposts on land where the displaced communities had lived.
The UN is far from an unbiased source, when it comes to Israel. But even if the true number of people expelled from their homes is "only" a half or a third of the one they give, it's still awful.
I rarely agree with Mike Huckabee, an extreme social conservative and the Trump Administration's ambassador to Israel. But he is right to call these violent settlers "terrorists" and demand the Israeli government put a stop to their activities. As conservative (and generally pro-Israel) New York Times columnist Bet Stephens points out, the right-wing Israeli coalition government led by Prime Minister Benjamin Netanyahu has largely turned a blind eye to these actions because his rule is dependent on the support of far-right parties that back the violent settlers.
The settlers' actions are reprehensible for multiple reasons. Most obviously, they seek to expel Palestinian Arabs from their land simply based on their ethnic background. Such ethnic cleansing is obviously unjust. In addition, the seizure of homes, farms, and other property is a blatant violation of private property rights. Private property is both an important human right in itself, and a vital element of liberty and autonomy more generally. Palestinians are no less entitled to these rights than any other group.
The settlers claim they are justified in their actions because Jews are the true, exclusive owners and sovereigns of the area and therefore have the right to exclude and expel members of other groups. This kind of ethno-nationalist claim to exclusive territorial rights is far from unique to Israeli settler extremists. All sorts of nationalist movements make similar claims - including, of course, many Arab and Palestinian nationalists.
But the ubiquity of such claims cannot justify them. In my book Free to Move, and other writings, I have argued that racial and ethnic claims to exclusive territorial rights are inherently unjust for much the same reasons as racial and ethnic discrimination is unjust in other contexts: race and ethnicity are morally arbitrary characteristics that should not determine what rights people have, including where they are allowed to live and work.
In addition, historical claims that one group has a right to exclusive rule of some territory founder on the reality that almost all inhabited territories have a history of multiple ethnic and racial groups living there. Thus, none can claim history proves they are the exclusive owners. This is clearly true of Israel and the West Bank. Jews, of course, have lived there for thousands of years. But the same is true of Arabs and other groups.
Most people are unwilling to go as far as I do in rejecting ethnic territorial claims. But even those who accept such historical arguments to a limited degree, should still recognize it is unjust to engage in ethnic cleansing of people who have lived in an area for decades or centuries. Their historical claim to live there is as good as anyone else's.
I readily recognize that my arguments imply that Jews also should not be barred from living in the West Bank, as many Palestinian nationalists would like them to be. They should indeed be allowed to live there, if they choose. But they should not have the right to take Palestinians' land and other private property by force.
One can also defend the violent settlers on the grounds that their actions aren't as bad as those of Palestinian terrorists, most notably Hamas. It is indeed true that - so far, at least - the Israeli settlers haven't murdered, raped, or tortured civilians on anything like the same scale as Hamas has, especially during the horrific October 7 attack.
But that in no way justifies the Israeli settler violence, most of which is directed against innocent civilians, whose only wrong is that they are Arabs living on land the settlers want to take for themselves. "Not as bad as Hamas" cannot be the standard of judgment here. You can be less bad than Hamas, but still a terrorist criminal.
In 2020, the Israeli Supreme Court struck down a government policy intended to expropriate Palestinian property for transfer to Israeli Jews (citing some of my own writings on takings and property rights, in the process). Some of what I wrote then is applicable to the current situation, as well:
Jews, including my own ancestors, have a long history of being victimized by unjust property expropriations at the hands of both European and Arab Muslim governments (as well as even more severe forms of persecution). Israel should not be in the business of perpetrating similar injustices of its own against other groups. The fact that this case was not on the same scale as many of the expropriations perpetrated against Jews is noteworthy, but still no excuse.
At the same time, it is also worth noting that Israel has an independent judiciary that curbs some of its government's unjust policies, as it has in this case. The same can't be said for most of Israel's adversaries.
Sadly, the present Israeli government hasn't shown the same commitment to liberal values as the Israeli Supreme Court did in 2020. Indeed, among its other sins, that government has been trying to undermine judicial review, in part for the purpose of establishing a kind of "tyranny of the majority." Israel must do better, and the US and other Western states should apply pressure to that effect, even as we also keep in mind that there is still a major moral gap between the Israelis and their adversaries.
What’s on your mind?
Some excerpts from the long Turpin v. Charlotte Latin Schools, Inc., decided today by the N.C. Supreme Court, in an opinion by Justice Richard Dietz, joined by Chief Justice Paul Newby and Justices Philip Berger Jr., Tamara Barringer, and Trey Allen:
According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent their children to a private school called Charlotte Latin School. Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as "Republicans are white supremacists." The school also required young students to read books on sexuality and gender identity that were not age appropriate.
The Turpins started organizing with other parents to voice their concerns about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting with school leadership. At the meeting, the school was not interested in discussing the Turpins' concerns. Instead, the school terminated the Turpins' enrollment contracts and expelled their children with no advance warning.
Among other things, the Turpins sued the school for defamation, and the court allowed the case to go forward:
The Turpins allege that Charlotte Latin and Baldecchi made false statements [to third parties] about the contents of the [Turpins'] PowerPoint presentation [that the Turpins delivered at the meeting]—specifically, that the PowerPoint contained the racist assertion that minority students and faculty at the school "have not earned their positions and honors" and that those minority students and faculty were "not up to the merit of the school" like the white students and faculty ….
The defamatory statements by Charlotte Latin do not accurately characterize the "gist" or "sting" of the PowerPoint discussion. First, the only portion of the presentation referencing how the school's approach "erodes the quality of student" and the "quality of teacher" expressly addresses all students and faculty, regardless of color. That section of the presentation asserted that the excessive focus on "DEI and Critical Theory" was shifting the school away from a classical education teaching "objectivity," "science," "canonical reading," and so on, to instead embrace a "political and ideological agenda."
Some excerpts from the long Turpin v. Charlotte Latin Schools, Inc., decided today by the N.C. Supreme Court, in an opinion by Justice Richard Dietz, joined by Chief Justice Paul Newby and Justices Philip Berger Jr., Tamara Barringer, and Trey Allen:
According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent their children to a private school called Charlotte Latin School. Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as "Republicans are white supremacists." The school also required young students to read books on sexuality and gender identity that were not age appropriate.
The Turpins started organizing with other parents to voice their concerns about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting with school leadership. At the meeting, the school was not interested in discussing the Turpins' concerns. Instead, the school terminated the Turpins' enrollment contracts and expelled their children with no advance warning….
The parents sued for, among other things, fraud, and the court let the claim go forward; here's the majority's analysis (the partial dissent doesn't focus on the particular "no blowback" statement that the majority discusses here):
To bring a claim for fraud, a plaintiff must allege a "(1) false representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." …
Here, the complaint alleges that Charlotte Latin promised the Turpins there would be no "blowback" or "retaliation" against them or their children if they met with school leadership to discuss their concerns; that this promise was false and, from the beginning, Charlotte Latin intended to deceive the Turpins and lure them to the meeting in order to create a pretext for expelling the children; that the Turpins believed Charlotte Latin's promise and spoke openly about their concerns because they believed the school would not use those discussions as the pretextual grounds to expel the children; that the school, in that same meeting, expelled the children, as they intended from the outset, despite promising the Turpins they would not do so; and that the school's deceit caused significant damage to the Turpins.
"Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as 'Republicans are white supremacists.'"
Some excerpts from the long Turpin v. Charlotte Latin Schools, Inc., decided today by the N.C. Supreme Court, in an opinion by Justice Richard Dietz, joined by Chief Justice Paul Newby and Justices Philip Berger Jr., Tamara Barringer, and Trey Allen:
According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent their children to a private school called Charlotte Latin School. Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as "Republicans are white supremacists." The school also required young students to read books on sexuality and gender identity that were not age appropriate.
The Turpins started organizing with other parents to voice their concerns about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting with school leadership. At the meeting, the school was not interested in discussing the Turpins' concerns. Instead, the school terminated the Turpins' enrollment contracts and expelled their children with no advance warning….
The subject matter of this lawsuit no doubt touches on divisive topics in contemporary social discourse. But none of those divisive topics have any bearing on the legal issues before this Court today. Our task is to determine if the Turpins' complaint satisfies the "notice pleading" standard that applies in civil cases. That well-settled standard requires the complaint to contain a "short and plain statement" sufficient to notify the defendants of "the events or transactions which produced the claim." When reviewing a complaint under this standard, courts must take all the allegations as true and cannot grant a motion to dismiss unless it "appears certain that plaintiffs could prove no set of facts which would entitle them to relief." …
There's a lot going on in the 16K words of opinions, but here's the heart of the analysis allowing Turpins' breach of contract claim to go forward:
Hunting ICE, unremarkable arson, and lewdness at the Founding.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: The First Amendment is for listeners too.
Yesterday's Seventh Circuit opinion in McDonald v. Trustees of Indiana Univ. held that public university professors lacked standing to challenge a state law that called for faculty members to be evaluated based in part on whether they were
(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;
(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or
(3) likely, while performing teaching duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction….
Because the professors lacked standing, the court didn't consider their substantive First Amendment challenges to that law. (For more on the law, and the standing issues, see this post.) But Judge Frank Easterbrook also added a concurrence that opined on the underlying First Amendment issue; I've emphasized the key passages:
Some excerpts from yesterday's longish McDonald v. Trustees of Indiana Univ., written by Seventh Circuit Judge Joshua Kolar and joined by Judges Frank Easterbrook and Doris Pryor:
Senate Enrolled Act 202 added a provision to Indiana's education code titled "The Protection of Free Inquiry, Free Expression, and Intellectual Diversity." … [The Act's] "promotion provision" … requires universities to establish a policy "that a faculty member may not be granted tenure or a promotion" if the university determines the faculty member is:
(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;
(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or
(3) likely, while performing teaching duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction….
[The Act's] "review provision" … requires a university to review tenured faculty every five years to determine whether they have met certain criteria. These criteria include "whether the faculty member" has:
My post yesterday on surrogacy and abortion has generated many responses, as I had suspected. Surrogacy is one of those issues that conservatives simply don't want to talk about. It is often heart-wrenching when couples are not able to have children, and IVF and surrogacy are viewed as miracles to let these couples have children. To raise any moral or legal objections to this practice is sometimes seen as a third-rail, even in Republican pro-life circles. And on the left, how many of the women who wore bonnets from the Handmaid's Tale to protest Justice Barrett hired poor women in Eastern Europe to carry their children? This is an issue that needs to be discussed more on both sides of the spectrum.
Here, I'd like to offer a few more thoughts.
To start, the terminology is important. In my earlier post, I used the phrase "biological parents" to refer to the couple that established the surrogacy contract, and the "surrogate mother" to refer to the woman that carries the child to term. I don't think these terms are precise enough.
Surrogacy can take many different forms. In some cases, the fertilized embryo includes biological material from both the male and female who establish the surrogacy contract. In other cases, the fertilized embryo includes the biological material from one member of the surrogacy contract (the male or the female). And in rarer cases, the fertilized embryo consists of material from a male and female donor, and includes no biological material from the couple that established the surrogacy contract. And in super-rare cases, there are three people who contribute biological materials. I'm not sure what the right terminology is, but "biological parents" is not always accurate.
I also don't like the phrase "surrogate mother" as that presumes the woman's only relationship with the child is the contract. In some cases, the woman carrying the child to term had her own egg fertilized, so she does have a biological connection to the child, even if the surrogacy contract purports to to nullify all parental rights.
If we want to be legalistic, perhaps we can use the language of contract law: the woman that performs the labor (literally) by carrying the child to term is the contractor, and the party/parties that receives the benefit of the contract is the contractee(s). Still, I find the entire commercialization of child-rearing to be unseemly, so this terminology is not ideal.
Maybe descriptive terminology is better. The woman carrying the child to term is, quite literally, the birth mother. Once the embryo is implanted, that person is the only person who can let the child be born. That role cannot be transferred to another person. To use the lingo, the contractual duties cannot be assigned to a third party. If another party/parties to the contract has a biological connection to the child, I would use the phrase biological parent(s). If the other party to the contract has no biological connection to the donor (both the egg and sperm were donated), then I would use the phrase contractual parent(s).
For starters, I think there is a strong argument that all surrogacy contracts violate public policy. I am not aware of any other context where courts will enforce a contract that requires a person to perform physical labor. The usual remedy when a party breaches a contract is damages. In some cases, specific performance is allowed, but that is usually akin to producing some fungible widget. Personal services are not going to be enforced. But surrogacy is just that. The biological or contractual parents do not want some form of monetary damages in case of breach. They want the birth mother to carry the child to term (unless they want the birth mother to have an abortion). This sort of contract would seem to flunk the most basic principles of specific performance.
Let's assume that the surrogacy contracts, in general, are enforceable. The far more problematic situation occurs where the biological or contractual parents demand that the birth mother have an abortion. Here, I think the distinction between biological and contractual parents matters. Contractual parents have no biological claim to the child. Their right is only contractual. A biological parent as least has some biological claim to the child, and thus a constitutional interest in directing the upbringing of the child.
What should happen if a contractual parent seeks to enforce an "abortion" clause in a surrogacy contract? I think a court should declare the entire surrogacy contract to be null and void, whether as a violation of public policy or a violation of the Thirteenth Amendment. The contractual parents would then have no legal claim to the child. All relationship would be severed. Is that outcome really so harsh? After all, they wanted to have the child terminated. What continuous interest could they possibly claim? Parents, and I use that term only in the legal sense, that seek to abort their child have demonstrated that they are no longer serving the best interests of the child. This is not the routine case where two parents disagree about the proper course of treatment for a child's care. Here, both parents simply want to end the child's life to avoid the grief the parents might suffer. Or perhaps they want to euthanize the child so the child will not feel any pain. A child is not some sort of item that can be ordered from a boutique and returned if the couple no longer wants it.
I think a state could even establish a statutory presumption that contractual parents who seek to enforce an abortion clause for a surrogate contract are by definition unfit parents. And in a sense, because these parents have no biological connection to the child, they have no constitutional right to direct the child's upbringing. At that point, a mechanism should be established to award temporary custody of the child to either the birth mother or to a guardian ad litem. This temporary custody would last until the child is born. The state should also mandate that hospitals perform all necessary procedures to ensure the child can be sustained through delivery. After delivery, a more fulsome procedure could be established to ensure proper custody is awarded for the child, either to the birth mother or through the foster system.
I think the analysis would be different when one of the contractees, for lack of better words, is a biological parent. Terminating parental rights is a serious affair, even when that parent seeks to terminate their child being carried by another person. If biological parents seek to have the birth mother perform an abortion, the birth mother or the state could petition a court to temporarily award custody to the birth mother or to a guardian ad litem until the child is born. After delivery, a court could adjudicate whether the biological parents or the birth mother has the stronger claim for custody. Presumably, once the child is born, the biological parents would no longer seek to euthanize the child. Again, I think the legislature could create a statutory presumption that biological parents who seek to terminate their own child are ipso facto unfit parents, but I think this presumption could be rebuttable.
There is another situation that is worth discussing. Surrogacy contracts have abortion clauses in both directions: contractual parents can force the birth mother to have an abortion and contractual parents can prevent the birth mother from having an abortion. In the latter case, could a court issue an order restraining the birth mother from having the abortion as a means of enforcing the surrogacy contract? Again, I think these sorts of contracts violate public policy, so unenforceable. Alternatively, does a biological parent have a right to protect their own child? Imagine that a husband and wife contributed a fertilized embryo, which was implanted in a surrogate. In the conventional sense, the surrogate would be seeking to abort another couple's child. I think a court could block the abortion in that context, apart from the surrogacy contract. In light of Dobbs, states can prohibit the abortion altogether, so the issue is somewhat moot. Of course, in blue states that permit abortion until the moment of birth, it is unlikely the legislature or court would bat an eye if a birth mother wants to terminate her pregnancy. And with mifepristone being sent through the mail like Tic Tacs, not much can be done to stop the surrogate mother from acting alone.
There are many issues here. I'm sure I'll write more on the topic in due course.
And he certainly was no Fascist.
Even today, I see people on social media denouncing former Israeli PM Menachem Begin as a "Fascist," echoing critiques made by his Socialist Zionist rivals, famously including Albert Einstein and Hannah Arendt.
The Fascist label was obviously unfair. After all, Begin sat peacefully in opposition in the Knesset for almost three decades, was elected PM, and then voluntarily resigned. This is not the behavior of a Fascist.
But I didn't know much more than that about Begin's political career. So I found a new article by Maya Mark, about Begin's struggle against Emergency Law during Israel's early years, of great interest. Mark focuses on Begin's opposition to emergency legislation that limited due process and other rights, and concludes that it was a product of sincere commitment to liberal democracy. That said, his own party was a potential target of the government, so there was an element of self-interest as well.
And that's why I found this paragraph especially intriguing:
As Israel's political regime was taking shape, Begin consistently argued that it lacked effective checks and balances, failed to adequately protect individual rights, and concentrated excessive authority in the executive branch. Under his leadership, Herut advanced a constitutional vision that stood in sharp contrast to that of the ruling government, advocating for a formal constitution that included a comprehensive bill of rights. His commitment to democratic values was further reflected in his persistent campaign to abolish the military government imposed on Israel's Arab citizens—a stance grounded in both liberal and democratic ideals.
In a footnote, Maya notes that Begin's opposition to military rule in the Arab part of the Galilee "entailed significant political costs within his right-wing constituency."
So much as a I suspected, Ben-Gurion and his Labor Party were closer to Fascism than Begin and his Herut Party. It was B-G who instituted emergency legislation, prolonged military government in the Galilee, state control of major industries, and other statist policies associated with Fascism. Nevertheless, B-G was also ultimately a democrat, even if a flawed one. But like other Socialists of his era, B-G had little healthy skepticism of state power; Begin, heir to a more liberal tradition, did.
From yesterday's published order in W.M.M. v. Trump (en banc), by Chief Judge Jennifer Walker Elrod:
In response to questions at oral argument and a later directive from the court, counsel for petitioners and the government revealed that the government has removed the three original named petitioners in this case. As there are currently no named petitioners in this appeal who are still in the United States, petitioners have moved to add five new class representatives on appeal—a motion that we deny today.
Petitioners have also moved for these five proposed class representatives to proceed pseudonymously on appeal, as well as for the sealing of their unredacted motion to add class representatives. The government does not oppose either motion.
But "the parties' consent does not end the analysis when determining whether pseudonymization is appropriate. Instead, the court must conduct its own balancing of the public and private interests at stake." We DENY these motions without prejudice to any future determination by the district court regarding whether to allow any new class representatives to proceed under pseudonyms or whether to seal a motion adding class representatives.
"What transpires in the court room is public property." Indeed, disclosure is generally favored. And "[p]ublic naming of litigants is one aspect of the broader 'presumption, long supported by courts, that the public has a common-law right of access to judicial records.'" Thus, "[a] strong presumption against party pseudonymity is generally well settled."
Some excerpts from the long (>16K word) opinions in Wednesday's U.S. v. Wagner, written by Sixth Circuit Judge Whitney Hermandorfer, joined by Alan Norris:
A grand jury indicted Kyle Wagner for cyberstalking and transmitting interstate threats. The conduct giving rise to the indictment followed a series of escalating communications in which Wagner threatened federal law-enforcement officers and their supporters, solicited resources to evade detection by the authorities, and entertained an inquiry about killing a former government official. A magistrate judge ordered Wagner detained pretrial. But the district court changed course and permitted Wagner's release. Though acknowledging that the record exhibited some risk of Wagner's danger, the district court reasoned that certain release conditions—like requiring Wagner's assurances that he will limit his internet access and avoid making additional threats—would adequately ensure public safety. The Government appealed and sought an emergency stay of the release order, which we granted. We now reverse the district court's decision….
Kyle Wagner is a self-professed member of Antifa—short for anti-fascist—based in Minneapolis, Minnesota.
Wagner has stated that he's willing to die in what "he view[s] as" an "ideological battle" against "violent fascist government actions and its supporters." Around January 2026, Wagner undertook a series of escalating steps to oppose Immigration and Customs Enforcement's actions in Minneapolis and broadcast his efforts to a social-media following. As the month progressed, Wagner's social-media posts transitioned into direct calls for violence against federal agents and their supporters.
A few examples paint the picture. Wagner proclaimed that the situation in Minneapolis was "kill or be killed." In that same post, Wagner encouraged his online followers to "hunt" ICE by "sacrific[ing]" their "vehicles." In other posts, Wagner declared that he and his followers were "f**king coming for" ICE and were "coming for [ICE's supporters] too." Wagner urged his followers to "f**king fight" ICE and "put[ ] hands" on law-enforcement agents and "take their f**king guns." He suggested that he and his followers should "have a little f**king fun" by "identify[ing] every single" ICE agent, "at the barrel of a gun" if necessary. Wagner also lamented that protestors had yet to "march on f**king Whipple"—the federal building in Minneapolis—"with guns." He therefore directed his followers to "[g]et your f**king guns and stop these f**king people." Wagner prefaced that directive by exclaiming that he was "not talking about peaceful protests anymore." Other videos of Wagner's stressed that Minneapolis was "where ICE has come to die."
8/14/1935: President Roosevelt signs into law the Social Security Act of 1935. The Supreme Court upheld the constitutionality of this law in Helvering v. Davis (1937).
What’s on your mind?
The ruling does not address whether Trump properly invoked the Act.
Today, the en banc US Court of Appeals for the Fifth Circuit dismissed, as moot, W.M.M. v. Trump, an important case about whether President Donald Trump's invocation of the Alien Enemies Act of 1798 as a tool for peacetime mass deportation is legal.
The AEA allows detention and deportation of foreign citizens of relevant countries (including legal migrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Trump seeks to use the AEA to deport Venezuelans the administration claims are members of the Tren de Aragua drug gang. Last fall, the Fifth Circuit ruled that Trump's action is illegal because illegal migration and drug smuggling do not qualify as an "invasion" or a "predatory incursion" of the kind necessary to invoke the AEA. Later, the Fifth Circuit decided to rehear the case en banc before all 17 of the court's judges.
Today, the en banc court dismissed the case for procedural reasons, because all three of the named plaintiffs have been deported by the government, under statutes separate from the AEA. I will not attempt to comment on the procedural issues involved here, which are best left to people with greater expertise on that topic.
At least for the moment, this leaves the key issue of Trump's invocation of the AEA unresolved in the AEA. The dismissal of the appeal - presumably - also vacates the original Fifth Circuit panel opinion.
In my article, "Immigration is Not Invasion" (currently under submission to law reviews), I provide a comprehensive overview of the many reasons why "invasion" - as that term is used in the Constitution and the AEA - must be a military attack, not illegal migration, drug smuggling, or other similar activity. I also outline there the dire implications of adopting a broad definition of invasion. Among other things, it would allow the federal government to suspend the writ of habeas corpus (and thereby detain people - including US citizens - without due process) at any time. It would also give state governments the power to "engage in war" against neighboring foreign countries at virtually any time, even without congressional authorization. Many of these issues are also covered in my amicus brief in the case, which I coauthored on behalf of the Brennan Center, the Cato Institute, and others.
In a concurring opinion in the en banc decision, prominent conservative Judge James Ho argues that the court should have decided the case on the merits, and that it should have ruled that the president is entitled to absolute deference when he determines that an "invasion" has occurred. The absurd implications of this position came out in the en banc oral argument, when Chief Judge Jennifer Elrod asked whether the government's position implies that the president could invoke the Alien Enemies Act in response to the "British Invasion" of rock stars like The Beatles, and Department of Justice attorney Drew Ensign had to admit the answer is "yes."
Most of Judge Ho's opinion simply recapitulates arguments for absolute deference that he made in various previous solo opinions. I address his arguments and others like them in great detail in Part V of my "Immigration is Not Invasion" article. He does, however, make one notable novel argument.
It's undisputed that courts have no power to question a Congressional declaration of war. Courts may ask if Congress has declared war—but we do not look behind the declaration and ask whether we agree that there is a legitimate war at hand….
As a matter of statutory interpretation as well as separation of powers, there's no basis for requiring courts to defer to a Congressional declaration of war, but not a Presidential proclamation of invasion.
This makes no sense. A congressional declaration of war is legally sufficient to create a state of war regardless of anything that happened previously. As far as the Constitution is concerned, Congress can declare war on a foreign power without any provocation whatsoever (even though such an action might be unjust and might violate international law). By contrast, an "invasion" is an objective state of affairs that exists in the world. It is a factual prerequisite to the exercise of various constitutional and statutory emergency powers that cannot be exercised in its absence.
If the president could create an "invasion" simply by claiming that it exists, it would convert dangerous emergency powers that can only be used in extreme circumstances into blank checks the president can invoke any time he wants. That's contrary to the text of the AEA (which limits its use to situations where these circumstances actually exist) and to the text and original meaning of the Constitution. If the Constitution gave the president (or any other single person) the authority to wield these sweeping emergency powers anytime he feels like it, that issue would surely have been raised at the Constitutional Convention and by opponents of ratification. The same point applies to the AEA, which would surely have attracted widespread opposition if understood in that way. These points, too, are covered in much more detail in my article.
Judge Andrew Oldham also indicated he would have preferred a ruling on the merits that gives the president virtually total deference. He offers no new analysis, but has previously written various solo opinions defending that position. I have critiqued his arguments in detail in Part V of my article.
Litigation over the AEA and other "invasion"-related issues continues in courts across the country, including in the Fifth Circuit. So far, the vast majority of courts to rule on the merits have held that Trump's invocation of the AEA is illegal. Last year, in Trump v. J.G.G., the Supreme Court avoided the merits, but indicated that the meaning of the words in the AEA is subject to judicial review. These cases and other relevant background are covered in detail in Part I of my article. The issue is likely to return to the Fifth Circuit, and may well also be taken up by the Supreme Court.
NOTE: I have made a few additions to this post.
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