The Volokh Conspiracy Archive

From Judge John Cronan (S.D.N.Y.) today in Combs v. Mitchell:

Plaintiff Sean Combs is a well-known musician who uses the stage names Diddy, P. Diddy, and Puff Daddy. In September 2024, he was indicted in this District on charges of racketeering, sex trafficking, and transportation to engage in prostitution, and in July 2025, he was acquitted by a jury of racketeering and sex trafficking but convicted of transportation to engage in prostitution.

This case concerns statements made about Combs in the months between his indictment and his trial. Combs alleges that Defendant Courtney Burgess falsely claimed to possess video recordings of Combs sexually assaulting celebrities and minors. Additionally, Combs claims that Defendant Ariel Mitchell—an attorney who represented Burgess—vouched for Burgess's accusations and made false statements of her own, including that a police report corroborated an accusation of rape against Combs and that Combs had used drug-laced baby oil to incapacitate his victims. Finally, Combs alleges that Defendant Nexstar Media Inc. ("Nexstar") amplified these falsehoods by broadcasting them on the cable news channel NewsNation without any investigation and despite reason to doubt their truth….

Burgess hadn't appeared to defend himself, so this opinion doesn't discuss the claims against him. But the court threw out most but not all claims against Nexstar:

Combs's defamation claim against Nexstar is based on four of the seven allegedly defamatory statements—Statements 1, 2, 4, and 5. Each of these statements arises from NewsNation's broadcasting of statements made by Mitchell or by both Mitchell and Burgess. Statement 1 is Burgess's assertion on October 31, 2024, that there existed video recordings of Combs sexually assaulting minors and celebrities, Statement 2 is Mitchell's statement also on October 31 that Combs secretly recorded himself having sex with people who did not know they were being recorded, Statement 4 is Mitchell's assertion on September 27, 2024, that a police report corroborated her client's claim that Combs raped her [likely meaning "him," which is to say Burgess] in 2018, and Statement 5 is Mitchell's accusation on October 7, 2024, that Combs used drug-laced baby oil to incapacitate people.

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 Bound by Oath podcast: In 1966, Los Angeles officials tried to put a man in prison for handing out leaflets in protest of a fatal police shooting. Today, we know the case as Younger v. Harris, which kicked off the doctrine of Younger abstention, the bane of many a civil rights plaintiff. On this episode, we examine the origins, the impact, and the relentless expansion of the doctrine.

New on the Short Circuit podcast: You have a First Amendment right to record the police! And a Fourth Amendment right to not show ID! But if you exercise those rights, it's OK if you're arrested.

Infantryman Robert "Bowe" Bergdahl left his post in Afghanistan in June 2009 and was promptly captured by allies of the Taliban. After five years of captivity and torture, he was released in a prisoner swap. At court-martial, he pleaded guilty and was dishonorably discharged. Unknown to him, the judge presiding over his court-martial was seeking a job in the Trump DOJ and had submitted as his writing sample an order holding that then-candidate Trump's comments that Bergdahl was a "traitor" who "deserved the death penalty" did not constitute "unlawful command influence." Bergdahl files suit in federal court to vacate the conviction. D.C. Circuit: But we don't have jurisdiction over that sort of thing.
Convinced that the president is the antichrist, man fires multiple rounds from an AK-47 at the White House. No one is hurt; he pleads guilty to injuring a dwelling. Crime of violence? D.C. Circuit: Crime of violence.
Because we love you, we do research: This First Circuit opinion is, in fact, the first time a decision in the Federal Reporter has promised to "fill in the deets[.]" Read More

[This post is co-authored with Professor Seth Barrett Tillman.]

Over the past decade, many legal challenges have turned on whether a particular position is an "officer of the United States" or an "office . . . under the United States." In the Foreign Emoluments Clause litigation, the plaintiffs argued that the President holds an "office . . . under the United States." In the Special Counsel's prosecution of Donald Trump, the former President argued that Jack Smith's position is properly characterized as a principal "officer of the United States" who must be appointed by the President pursuant to the Appointments Clause, rather than by the Attorney General. During the Amendment XIV, Section 3 litigation, state voters argued that Donald Trump was disqualified from serving as President because he took an oath of office as an "Officer of the United States" and the presidency was an "Office under the United States." All of these cases were high-profile and related to important political controversies. But there is another case pending in the courts that turns on the meaning of "Officer of the United States" that is far less in the news, but nevertheless has the potential to significantly reshape U.S. constitutional law.

The qui tam provision of the False Claims Act ("FCA") authorizes relators to pursue a case against those accused of defrauding the federal government. In short, the relators can bring a suit in the name of the United States against private parties. The relators are not appointed by the President or the Attorney General (the head of the department). Any private citizen can bring suit as a realtor. For decades, any number of conservative legal scholars and practitioners have argued that the qui tam provision violates the separation of powers. In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, put forward that position in a memorandum opinion for the Attorney General. But in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views. More recently, in United States ex rel. Polansky v. Executive Health Resources, Inc., Justice Thomas wrote that "FCA's qui tam provisions have long inhabited something of a constitutional twilight zone." In 2024, in USA ex rel. Zafirov v. Florida Medical Associates, LLC, a federal district court in the Middle District of Florida declared the qui tam provision to be unconstitutional. Judge Mizelle found that relators are properly characterized as "officers of the United States," and therefore, they had to be appointed pursuant to the provisions of the Appointments Clause. Given that the relator in this case was only a private citizen, and was not appointed per the Appointments Clause, the lawsuit was dismissed.

The Eleventh Circuit has now reversed the trial court. The unanimous panel held that relators are not "officers of the United States." The court remanded the case to the district court with directions to consider the defendants' remaining arguments in support of defendants' motion to dismiss based on the Take Care Clause and the Article II Vesting Clause.

In this blog post, we will walk through the circuit court's analysis that relators are not "officers of the United States," and we speculate on the next steps for this case. A starting point for interested readers is the amicus brief we filed before the Eleventh Circuit in the challenge to Special Counsel Jack Smith's appointment. We tried to bring some clarity to what is an otherwise complicated area of law: Where is the line between an "Officer of the United States" and a mere employee?

The crux of the Eleventh Circuit's decision is that relators "do not hold a continuing position," and therefore, they are not "Officers of the United States," and thus, they do not need to be appointed by the President or the Attorney General. The Eleventh Circuit correctly cites the Supreme Court's recent decision in Lucia v. SEC, which stated that an "officer of the United States" position must be a "'continuing' position established by law." This test from Lucia stretches back to three nineteenth-century decisions. United States v. Hartwell (1868) stated that the term officer "embraces the ideas of [i] tenure, [ii] duration, [iii] emolument, and [iv] duties." United States v. Germaine (1879) further explained that the "duties" of an "Officer of the United States" must be "continuing and permanent, not occasional or temporary." The Court would apply the Germaine-Hartwell framework in Auffmordt v. Hedden (1890).

Lucia primarily focused on a single factor of the four-factor Germaine-Hartwell test: continuity. What has created some confusion is how to map Lucia's "continuity" test to the factors of the Germaine-Hartwell four-factor test. What must be "continuous"? Must the "tenure" be continuous? Or, must the "duration" of the position be continuous? Or, must the duties be "continuous"? Before Lucia, the courts never squarely addressed this issue. But after Lucia, this question may no longer matter. The requirement that matters now is continuity. But what does it mean for a position to be "continuous"?

The Eleventh Circuit adopted the framework from Auffmordt and an earlier circuit court decision from Chief Justice Marshall, United States v. Maurice. The Eleventh Circuit panel stated:

So in determining whether a person holds a continuing position established by law, the Supreme Court has evaluated whether that person holds a "permanent" tenure, whether his employment has "duration as to time," and whether he receives a "continuing emolument." Auffmordt v. Hedden, 137 U.S. 310, 327–28 (1890); Germaine, 99 U.S. at 511–12. And with respect to "duties," Chief Justice Marshall asked "if [the] duties continue, though the person be changed." United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J.); see also Auffmordt, 137 U.S. at 327 (relying on Maurice in a continuing-position analysis).

An interesting perspective from D.C. Court of Appeals Judge Stephen Glickman concurring in Douglas v. Deutsche Bank Nat'l Trust Co. (more on that case here):

The panel opinion, which I join, states that "every attorney who signed the brief bears some responsibility" for inclusion of fake citations. I agree with that general principle, subject to a clarification as to what I think it must entail. The opinion also quotes, with evident approval, the Ninth Circuit's declaration that "[a] competent and diligent attorney cannot decline to 'vet' citations, in a brief he signs, for substantive validity—in other words, to read the cited authorities and ensure that they are on point." In the appeal that the Ninth Circuit had before it, there was only one signatory on the brief in question.

If the quoted statement is understood to mean that every signatory on any brief with multiple signatories must personally check every citation in the brief for accuracy, I demur….

Preliminarily, the term "signatory" may be misleading. Appellate briefs commonly list the names of multiple attorneys for the party on whose behalf the briefs are submitted. Ordinarily, only one of those attorneys actually signs the brief. For present purposes, though, all the named attorneys are deemed to be "signatories" who stand behind and who (usually, but not always) contributed to the brief. (It is not unreasonable for a brief to list the attorneys who represent the party in the appeal even if they did not personally contribute to the brief or were not its principal drafter(s).) This does not mean, however, that all these "signatories" necessarily have exactly the same responsibilities for ensuring that the brief comports with ethical and other requirements.

Fulfilling the duty to guard against AI-hallucinated (or otherwise invalid) citations can be a group effort that does not require every signatory to personally cite check every brief. Such a requirement would be impractical, unduly burdensome, and unnecessarily duplicative given the availability of reasonable alternative procedures to guard against erroneous citations. {See Lake v. Gates, 130 F.4th 1054, 1062 (9th Cir. 2025) (Bumatay, J., concurring in the judgment only) (Disagreeing with the majority's conclusion that federal Rule 11 allowed the trial court to sanction an attorney who participated on a brief as "of counsel" and only contributed a discrete portion to the offending brief, because "[a]s a textual matter…, Rule 11 permits different levels of accountability for different attorneys in a case…. To encourage the participation of specialized attorneys and to improve the quality of advocacy in our courts, we should have adopted a rule that recognizes the circumscribed role that some attorneys with subject-matter expertise may play in litigation.").}.

From Douglas v. Deutsche Bank Nat'l Trust Co., decided yesterday by D.C. Court of Appeals Judges Catharine Easterly, Vijay Shanker, and Stephen Glickman:

What began as a routine appeal has become a cautionary tale about the misuse of artificial intelligence (AI) and its consequences for attorneys, their clients, and the courts…. While reviewing appellee's [i.e., the Bank's] brief, the court discovered that it contained multiple citations to cases that the court was unable to locate or confirm as legitimate. On June 22, we issued an order requiring appellee to show cause "why the court should not strike its brief for citing nonexistent cases that are possibly the product of artificial intelligence (AI) hallucinations."

The next day, one of appellee's attorneys at the firm, Loishirl W. Hall, filed a response in her own capacity. Ms. Hall confirmed that four of the brief's cited authorities did not exist. She acknowledged that these citations were "not legitimate legal authority" and "should not have appeared in a brief filed with this Court." {Ms. Hall has informed the court that she no longer works at the firm and thus no longer represents appellee, although appellee has not moved for her withdrawal from the case.}

Ms. Hall explained that she had "used Google's generative artificial intelligence search tool to assist in locating case authority" and did not verify the existence or accuracy of those citations before filing the brief. She recognized that she had a duty to verify the accuracy of every authority submitted to this court and apologized for her failure to do so. As part of this mea culpa, Ms. Hall assured the court that she had taken the remedial measure of verifying that the remaining citations in the brief were legitimate authority and pledged that, going forward (presumably in her representation of other clients), she would not rely on any AI tool "for legal research without confirming each authority" or file anything that includes citations she has not independently verified. Ms. Hall represented that she "deeply regrets this error and the burden it has placed on the [c]ourt and all parties."

The firm subsequently filed a response for appellee. The firm stated that it was "unaware" of Ms. Hall's actions when the brief was filed. Although two other attorneys—Jianna Jaques Santos and Michael T. Cantrell—were listed on the brief with Ms. Hall, no information was provided about their review of appellee's brief before filing. Instead, the firm represented that it "only became fully aware of the situation" (emphasis added) once the court issued its show-cause order and Ms. Hall responded. The implication—that the firm did nothing after the court issued its order to become "fully aware" on its own that it had included fake case citations in its brief—is surprising, to say the least. The firm then shifted much of the blame to Ms. Hall, who had stated in her filing that she had never filed an appellate brief before this one.

9/4/1851: Justice Levi Woodbury dies.

As KY3 (Paul Adler) notes, "[a] graphic on [Rep.] Eric Burlison's website resembles the Great Seal but replaces the quiver of arrows with an AR-15 style weapon." The question is: Is that legal?

I say yes, for various reasons, but most importantly the First Amendment. The First Amendment protects the right to fly the American flag—that is to say, your own copy of the flag—with a peace symbol attached, see Spence v. Washington (1974). Of course, it famously protects even the right to burn the flag. It likewise protects your right to display a copy of the great seal with some technological updating (unless, of course you're doing so to knowingly impersonate government officials or to otherwise defraud people in various ways).

From the docket this morning; for more on the case, see here and here (the latter item notes the sealing, and expresses the now-realized hope that "the motion will be unsealed at some point soon"):

Via email, Plaintiff has informed the Court that it will not be pursuing preliminary injunctive relief…. Plaintiff has also indicated an intent to amend its Complaint…. Finally, it appears that the Clerk sealed the documents filed by Entergy in error …. Docs. 2, 3, and 4 should be unsealed. Plaintiff has confirmed that it never intended for these documents to be sealed in the first place.

The unsealing reveals that the plaintiff's brief in support of the TRO motion didn't even discuss the First Amendment elephant in the room, even though it was pretty obvious that the judge would recognize that a lawsuit seeking to restrain a newspaper's publication would raise such an issue.

Back in 2007, here at the Volokh Conspiracy, I had a post on how to excel on law school exams. I have heard that the post is still read among law students, so I decided to expand on that post and turn it into a more helpful essay for today's students to read.

I finally finished the draft, and I posted it on SSRN yesterday. You can read it here: How to Excel on Law School Essay Exams: A Guide for Students. It begins:

This Essay offers guidance on how law students can earn high grades on law school essay exams. It starts with the goals law professors have when writing exams, which then frames what counts as a poor or strong performance. The essay then presents a hypothetical exam question with four answers, and it grades the answers to help explain what makes the different answers better or worse.

This is just a first draft, and I plan to improve it over the semester, so please send specific suggestions for improvement to me at okerr at law dot standord dot edu. I'm particularly interested in feedback from other law professors, as I'm trying to capture how grading looks from the faculty perspective, all to help students do their best.

I see this essay as a companion piece to my 2007 essay, How to Read a Legal Opinion: A Guide for New Law Students, and also last year's video, So You're About to Start Law School: A Guide to the First Month. The goal of all three has been to share the insider knowledge that connected people have with everyone else, so that students without connections start off on more equal footing and law school on the whole is more fair.

This is Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc., a case I blogged about yesterday, where a data center construction company sought a temporary restraining order barring the Arkansas Democrat-Gazette from publishing certain alleged trade secrets that were allegedly improperly released by the Arkansas Public Service Commission to a citizen (Jessica Kivell) and were then sent by her to the Democrat-Gazette. I now have a copy of the transcript of Judge Lee Rudofsky's oral opinion that he delivered in court yesterday. The opinion is long, but here's a slightly edited excerpt of the First Amendment discussion, which focuses on the TRO request against the press defendants. As usual, I use curly braces ({ and }) to indicate moved text, clean up some of the citations, and add or remove some paragraph breaks.

The court concluded that, even "assuming arguendo that there's a fair chance that the press defendants have violated the federal and state trade secrets provisions," the First Amendment would preclude the TRO:

What Entergy is asking for with regard to the press defendants is actually or is the equivalent of a prior restraint. Entergy is asking that the Court prevent the press defendants from publishing news articles that include information Entergy believes to be trade secrets….

[S]ome of [what follows] are quotes, some of these are slight paraphrases…. The Supreme Court has held that "prior restraints of expression come to courts bearing a heavy presumption against constitutional validity." … Bantam Books v. Sullivan (1963). "Prohibiting the publication of a news story is the essence of censorship." … Matter of Providence J. (1st Cir. 1986)…. "A plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern." New York Times v. U.S. (1971)….

The prior restraint doctrine has been applied in the context of trade secrets cases as well, and although the Court acknowledges that in this context, just as in some other contexts, courts continuously note that not all prior restraints are per se unconstitutional…. [T]here is an absence of cases where a court has actually prevented the press from publishing trade secrets. Indeed, as I understand it from yesterday, plaintiff has only pointed to one case from the California Supreme Court. And, quite frankly, that case is both unpersuasive and very far afield from the facts of our case.

USA Today just published my op ed entitled ""Democratic Socialists and MAGA Share a Dangerous Flaw." Here's an excerpt:

Beginning with New York City Mayor Zohran Mamdani's election victory in 2025, democratic socialist candidates have won a string of major Democratic primaries – most recently Florida state Rep. Angie Nixon's upset U.S. Senate nomination win – and come close in several others. Vermont Sen. Bernie Sanders has long been the most prominent self-proclaimed democratic socialist in national politics, and was the runner-up for the Democratic presidential nomination in both 2016 and 2020.

Democratic socialism is a terrible ideology. If implemented, its agenda would cause grave harm and imperil democracy itself. And in seeking massive state control of the economy, today's socialists ironically have much in common with the MAGA nationalists they claim to oppose.

Both promote government control over the economy, and both paths undermine liberty, prosperity and democracy. Socialists do not control the Democratic Party in the way MAGA largely dominates the Republicans. But their influence is growing.

The democratic socialist agenda goes far beyond a marginal increase in economic regulation or welfare spending. It amounts to sweeping government control of the economy and society, on a scale that invites comparison to Cuba, North Korea and the old Soviet Union….

Ironically, democratic socialists have more in common with MAGA nationalists than either likely wants to admit. President Donald Trump has pursued his own version of economic central planning: ruinous tariffs, severely restrictive immigration policy and government equity stakes in Intel, U.S. Steel and roughly 30 other companies.

Tariffs and immigration restrictions are both major forms of government control over the economy. Immigration restrictions, in particular, curtail economic freedom more than any other current U.S. policy….

The rest of the article explains how both socialist and nationalist forms of government control of the economy run into problems of knowledge and incentives, and why both threaten liberty and democracy. I also explain why adherents of these ideologies cannot paper over their flaws by claiming they favor democratic versions of them, rather than authoritarian ones:

Today's socialists say they will avoid this fate because they champion "democratic" socialism, not the authoritarian kind. But near-total state control of the economy has never coexisted with democracy for long. A government that controls the economy can starve opposition parties of resources and weaponize control of basic goods to crush dissent.

That's exactly what happened in Venezuela, where a democratically elected socialist government became a dictatorship.

Right-wing nationalist regimes have followed a similar path, in Germany, Italy, Spain and many Latin American nations.

Many of today's socialists even admire authoritarian socialist regimes and hope to emulate them:

The DSA praises Cuban communist dictator Fidel Castro, who turned that country into a totalitarian state.

Prominent socialist "influencer" Hasan Piker praised Mao – the biggest mass murderer of all time – as "one of the great leaders of this world."

Sen. Sanders has a long history of praising communist despots.

"Postliberal" MAGA nationalists similarly often admire right-wing despots, like Spain's Francisco Franco, Portugal's Antonio Salazar and others.

Progressives and others should consider whether they trust someone like Trump to have the kind of sweeping control over the economy socialists advocate for. There is no guarantee such a person – or worse – would not come to power under socialism….

I end with this point:

If nothing else, we should heed the powerful evidence of people "voting with their feet." Almost every socialist regime in history has produced a mass exodus toward market economies, never the reverse. Venezuela's exodus is the largest refugee crisis ever recorded in the Western Hemisphere, and Cuba has had multiple waves of refugees over six decades….

If socialism worked as advertised, people would be fleeing market economies to live under it, not the other way around. Right-wing nationalist regimes have produced their own refugee outflows. Refugees from Nazi Germany and fascist Italy, for instance, helped build American science, including the Manhattan Project, which developed the atomic bomb.

I addressed some of the issues covered in the article more fully in previous writings, such as "The Case Against Nationalism" (coauthored with Alex Nowrasteh), and "Perils of Democratic Socialism." See also my recent piece on the contradictions of socialist prison abolitionism.

From the Report and Recommendation by Magistrate Judge Zachary C. Bolitho (N.D. Fla.) yesterday in Hales v. Luthmann (the same Luthmann from the Staten Island trial by combat case):

Plaintiff Jeremy Hales operates an online business that generates revenue by posting content on social media websites …. Plaintiff has over 730,000 subscribers for his "What the Hale$" channel on YouTube and over 327,000 followers for his "What the Hale$" page on Facebook.

Defendant Richard Luthmann also maintains an online presence by, among other things, posting content on a blog. In early 2025, Defendant Luthmann allegedly sent emails about Plaintiff to the Anti-Defamation League and to people who post content on YouTube. Around the same time, Defendant Luthmann also posted a video to a blog allegedly depicting Plaintiff "as Adolf Hitler by adding a Hitler mustache to Plaintiff's photograph and engaging in oral sex with a journalist." …

[Plaintiff] alleges that Defendant Luthmann violated Florida's sexual cyberharassment statute, Fla. Stat. § 784.049…. To state a violation of § 784.049, a plaintiff must plausibly allege

Defendant published a sexually explicit image of Plaintiff on an internet website;

The image contained or conveyed Plaintiff's personal identification information;

Defendant acted willfully and maliciously, for no legitimate purpose, and with the intent of causing substantial emotional distress to Plaintiff;

Plaintiff did not consent to the publication….

The dispute was about whether the video showed a "sexually explicit image," and the court said no:

From Tuesday's decision by Judge Lara Montecalvo, joined by Chief Judge David Barron and Judge Sandra Lynch, in Díaz v. Colón:

In its summary judgment order, the district court held that Plaintiffs were entitled to relief under the Equal Protection Clause of the Fourteenth Amendment. {[T]he district court only reached Plaintiffs' claim under the Equal Protection Clause; it did not reach Plaintiffs' claims under the Due Process Clause or the First Amendment of the U.S. Constitution and Puerto Rico Constitution.}

Explaining that the Application for Gender Change gives "an option for binary applicants to choose a gender marker which aligns with their true gender, but does not provide [such] an option" for "nonbinary individuals," the district court concluded that Puerto Rico's "Birth Certificate Policy" creates a classification on its face between "people with a binary gender identity" and "nonbinary people." The district court also concluded that it did not need to decide which level of scrutiny applied to Puerto Rico's Birth Certificate Policy because it held that the Policy did not survive the lowest level of scrutiny—rational scrutiny….

Under [the]"forgiving" standard [set forth by past cases], we conclude that Puerto Rico's Birth Certificate Policy is supported by a rational basis….

9/3/2005: Chief Justice William H. Rehnquist dies.

Last month, I wrote about Trump's new executive order seeking to deny birthright citizenship to various classes of children born on US soil, and noted the first legal challenges to it. As I pointed out then, almost every part of the new order is at odds with the Supreme Court's recent ruling in Trump v. Barbara, which struck down Trump's executive order denying birthright citizenship to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. The Fourteenth Amendment guarantees grants citizenship to all children "born or naturalized in the United States, and subject to the jurisdiction thereof." In Barbara, the Supreme Court majority made clear that "subject to the jurisdiction thereof" includes children of all persons who are subject to and required to obey US law.

Today, in Casa, Inc. v. Trump, federal district court Judge Deborah Boardman of the District of Maryland issued a decision imposing a preliminary injunction blocking the new order. It is the first judicial ruling on Trump's new birthright citizenship executive order. As Judge Boardman put it, "[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth." She goes on to explain why:

When the Supreme Court explained the meaning of "subject to the jurisdiction" of the United States, it distinguished between people over whom the United States has the power to govern (and who are thus subject to the jurisdiction of the United States) and people over whom the United States does not have the power to govern (and who are thus not subject to the jurisdiction of the United States). See Barbara, 146 S. Ct. at 2449– 50… . The latter category of people falls into the "narrow exceptions" to the rule of citizenship by birth that are implicated when the United States does not have the "full and complete power" to govern over people born on its land. Id. at 2450. Those "narrow exceptions" include "children of foreign ministers" and "members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign)." Id.

This is pretty obviously correct. As explained in my earlier post on the new executive order, that order covers four groups almost all of whose members are clearly subject to US law:

Children of "alien enemies," defined as those where at least one of two non-citizen parents is a "designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism)."
Children born to at least one non-citizen parent who is a "foreign government employee" or employed by an "international organization that possess[es] international-organization immunity."
Children where "either parent" has engaged in "birth tourist" transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).
Children "born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute." …[T]his only applies to children born in American Samoa, the one populated overseas US territory to whose residents Congress has not conferred citizenship by statute….

As I explained more fully in the earlier post, all of the children in these four categories are obviously subject to US law, with the exception of those born to foreign diplomats who have diplomatic immunity. This latter group is already excluded from birthright citizenship. In that post, I also explained why the analogy between "alien enemies" (as defined in the order) and children of members of an invading army occupying US territory fails.

Judge Boardman's ruling also covers a number of procedural issues I will not attempt to go over here. But the bottom line is she has imposed a preliminary injunction blocking implementation of the order with respect to a previously certified class of all children born on US territory and subject to the 2025 executive order, to parents who are unlawfully present in the US or here on temporary visas (the class was certified as part of the litigation challenging Trump's earlier birthright citizenship order).

This covers pretty much all the people potentially affected by the new birthright citizenship order and born after February 19, 2025 (when the earlier executive order took effect), except those born to legal residents of American Samoa, in category 4 above. It is not clear whether the administration will try to implement the order against children born before February 2025. As noted in Judge Boardman's opinion, "[n]owhere in the order does it indicate it does not apply to children already born." The government's lawyers claimed it would only apply to children born in the future, but these assurances may not be credible. If the administration does try to enforce the order against children born before February 2025, further litigation will be needed to stop that.

Today's ruling is probably only the beginning of the litigation over the new order. The administration is likely to appeal. But I hope and tentatively expect that appellate courts - including, potentially, the Supreme Court - will rule much the same way. The new order is pretty obviously at odds with Trump v. Barbara - and also with the text and original meaning of the Citizenship Clause of the Fourteenth Amendment.

From KARK (Alex Kienlen) today, reporting on a decision by Judge Lee Rudofsky (E.D. Ark.) in Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc.:

A federal judge issued a decision on Wednesday denying a request by lawyers for Entergy Arkansas to stop the use of documents released under the Freedom of Information Act (FOIA) to a Little Rock woman….

The Democrat-Gazette reported on Monday that the Entergy documents, including some marked "confidential," were released after Jessica Kivell filed her FOIA request with the Public Service Commission and shared them with the newspaper….

The filing asked that the defendants be immediately prohibited from using or disclosing the documents, since it would do "irreparable harm" by disclosing Entergy Arkansas' trade secrets.

There is no written opinion from Judge Rudofsky; but besides the general First Amendment rules against temporary restraining orders barring speech, the matter also seems to me to be governed by Florida Star v. B.J.F. (1989).

The Volokh Conspiracy

Sean Combs (P. Diddy)'s Defamation Suit Can Go Forward (Including Against NewsNation)

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

Eleventh Circuit Holds Qui Tam Relators Are Not "Officers of the United States." What Happens Next?

Lawyers' Responsibility for Hallucinations in Briefs That They Sign

"Incredulity" That "Competent Law Firm Representing One of the Largest Financial Institution[s] in the World" Filed Brief with AI Hallucinations

Today in Supreme Court History: September 4, 1851

Open Thread

If You Replace the 13 Arrows on the U.S. Great Seal with a Modern Rifle, Make Sure You Depict a 50-Round Magazine

Brief Update on the Entergy / Arkansas Democrat-Gazette Matter

My New USA Today Article On Dangerous Similarities Between "Democratic Socialists" and MAGA Nationalists

Florida Revenge Porn Law Doesn't Cover Simulated Sexual Conduct That's Implied Rather Than Shown

Puerto Rico Has Rational Basis for Allowing Only Two Genders for Birth Certificate Gender Changes

Today in Supreme Court History: September 3, 2005

Open Thread

Federal Court Issues First Ruling Against Trump's New Birthright Citizenship Executive Order

No TRO Against Arkansas Democrat-Gazette as to Publishing of Data Center Plans

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