The Volokh Conspiracy Archive

Rick Pildes at Election Law Blog calls attention to a post by Fix the Court that includes audio and some excerpts from an interview Justice Sotomayor did at the University of Zurich last year. Fix the Court -- a leading advocate of radical Court "reform" -- seems to want to spin Sotomayor's comments as good news, but Pildes points out that Sotomayor seems clearly skeptical of how judicial term limits might be implemented.

In particular, she seems to think that term limits could not be applied to the current justices, which she correctly points out would mean that the reformers would not actually get what they most care about which is altering the current composition of the Court.

Her remarks include this provocative claim:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of "unconstitutional constitutional amendments?" Not sure how many of the current justices would agree with her analysis that judges have a property interest in their seat that would supersede even a constitutional amendment, but I suspect a statutory effort to limit the terms of the justices would get a chilly reception at the Court.

Oh well, there's always Court-packing, which I'm sure will become an exciting topic of conversation again as soon as the Democrats reclaim Congress and the White House. Even if it has gone into dormancy for the moment.

You can find the Presidential Commission's discussion of judicial term limits in its report here.

The Inflation Reduction Act (IRA) authorized the federal government to force prescription drug manufacturers to "negotiate" drug prices for Medicaid. In a large number of lawsuits, drug makers allege the negotiations are coercive and potentially unconstitutional. Among the claims made in the various suits are that the IRA's rules violate due process, impose unconstitutional conditions, result in regulatory takings or excessive fines, and compel speech, among other things. Most of the cases are in district courts or focusing on preliminary matters, though the U.S. Court of Appeals for the Third Circuit rejected one suit on the merits. [Update: As did the U.S. Court of Appeals for the Second Circuit just this week.]

This past week a panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of one of these cases on standing grounds in Dayton Area Chamber of Commerce v. Kennedy. Specifically, the Court concluded that because the lawsuit was not "germane to the Dayton Chamber's purposes," venue in the Southern District Court of Ohio was improper. Basically, the Court concluded that prescription drug makers, located elsewhere, could not use the Dayton Chamber to file suit in the Southern District of Ohio.

From the opinion:

An association may sue on behalf of its members if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977). "[T]he doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others." Int'l Union, UAW v. Brock, 477 U.S. 274, 290 (1986). Requiring that an "association plaintiff be organized for a purpose germane to the subject of its member's claim raises an assurance that the association's litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's natural adversary." United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 555–56 (1996). As explained by the Second Circuit in Building & Construction Trades Council of Buffalo v. Downtown Development, Inc., 448 F.3d 138, 149 (2d Cir. 2006), the subject matter of the suit must "bear[] a reasonable connection to the association's knowledge and experience." . . .

Whether the interests at stake in this case (which the complaint describes as stopping the government from "depriving Plaintiffs' members of their constitutional rights, making it more difficult for them to operate their businesses, and stifling healthcare innovations that all of us depend on") are germane to the purpose of the Dayton Chamber (which it describes as "improv[ing] the region's business climate and overall standard of living" and "providing networking and training opportunities for its members") is far from obvious. One could argue, in fact, that the overall standard of living in the Dayton area would actually improve with lower drug prices for its citizenry. And at best, any possible relation between Pharmacyclics's and AbbVie's interests in this lawsuit and the Dayton Chamber's purposes exists at only a sky-high
level of generality. This is especially so because Pharmacyclics and AbbVie have no facilities in the Dayton area or indeed in the entire state of Ohio.

The Dayton Chamber itself acknowledges that its primary purpose is to advocate for a business-friendly environment in the Dayton region. And although Plaintiffs collectively argue that they have a broader purpose of safeguarding the principles of free enterprise and advocating for a business-friendly legislative and regulatory environment, the interests that they aim to protect are greatly attenuated from the regional interests of the Dayton Chamber. . . .

The present case is closer to those holding that an association lacked standing to sue. As in those cases, there is little reason to believe that the Dayton Chamber has any particular knowledge or experience in the subject matter of the lawsuit. It instead appears to be more of a "stalking horse" for Pharmacyclics and AbbVie in seeking a perceived favorable venue that Pharmacyclics and AbbVie could not obtain on their own. The district court reached the same conclusion, reasoning as follows:

Pharmacyclics and AbbVie are large pharmaceutical companies that could have
sued on their own in a federal court in a different state. Instead, Plaintiffs have
attempted to manipulate the system and manufacture standing to obtain a
favorable venue. If the Court found the Dayton Area Chamber of Commerce had
standing in this case, it would open the door for any individual or company to
bypass venue rules by becoming a member of any association remotely related to
a challenged law or regulation. The Court will not adopt a loose interpretation of
the standing requirement for the purpose of forum shopping.

We find this reasoning persuasive

This decision is interesting because it adopts a fairly stingy approach to associational standing--a controversial aspect of standing doctrine insofar as it may facilitate cause-based litigation by those without a concrete stake in the underlying issues (as the court suggested was occurring here).

Some, such as Justice Thomas, have raised questions about the scope of associational standing. Others, such as Michael Morley and Andrew Hessick, would argue associational standing should not exist at all. If the justices wanted a case to revisit the doctrine, this might be a case in which to do it--assuming the drug makers seek certiorari.

This week, in Chicago Wine Co. v. Braun, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court decision rejecting a constitutional challenge to an Indiana law barring out-of-state retailers from shipping wine to customers in Indiana. Yet there is no majority opinion of the court.

The case was initially heard by a panel consisting of Judges Kanne, Eaterbrook, and Scudder. After Judge Kanne's death, Judges Easterbrook and Scudder could not agree on why the state should prevail, so the court issued a per curiam noting that the district court was affirmed, and each judge issued an opinion explaining his reasons why that should be.

Dormant commerce clause doctrine is not known for its clarity (nor, some would say, its consistency). This judgment by the Seventh Circuit would seem to support that opinion.

From Judge Steven Merryday's decision yesterday in Lindberg v. Weinberg (M.D. Fla.):

Alleging that a December 2, 2024 Bloomberg Businessweek article titled How A Billionaire's "Baby Project" Ensnared Dozens of Women contains three false and defamatory statements, Greg Lindberg sues Bloomberg, L.P., and three Bloomberg employees …. Lindberg moves for an "emergency preliminary injunction" to stop Bloomberg from publishing an allegedly defamatory podcast based on the article.

Bloomberg's article details Lindberg's "baby project," an effort to use egg donors and surrogates to enlarge Lindberg's family. The sub-title of the article states, "Disgraced tycoon Greg Lindberg built a network of egg donors and surrogates. Several say he conned them—and that the US fertility clinics helped him do it." To substantiate the information in the article, the defendants "reviewed independently sourced legal, medical and financial records, and conducted dozens of interviews with [Lindberg's] former employees, clinic workers, ex-girlfriends, egg donors and surrogates." …

Lindberg alleges in Count V [which seeks injunctive relief based on the allegedly defamatory statements] that three statements in the article are defamatory[:] (1) that "Lindberg's selection of egg donors was based exclusively on eye color," (2) that "the statement characterizing Lindberg's family planning decisions as 'off' and 'jarring,'" and (3) that "Lindberg 'conned' women into donating eggs to him." The general allegations of the complaint include only allegations of the "eye color" statement and the "family planning" statement.

From Carroll v. Trump, handed down today by Judges Denny Chin, Sarah Merriam, and Maria Araújo Kahn:

On April 11, 2025, after this appeal was fully briefed, defendant-appellant President Donald J. Trump and the government ("the Movants") jointly moved to substitute the United States as a party to this appeal pursuant to the Westfall Act, 28 U.S.C. § 2679(d). Attached to the motion was an April 11, 2025, certification by a delegate of the Attorney General that Trump was acting in the scope of his office or employment at the time he made the statements underlying this defamation action….

On June 18, 2025, this Court denied the motion. We write now to articulate our reasoning for that denial. Specifically, we denied the motion for three independent reasons. First, the motion is statutorily barred by the text of the Westfall Act. Second, even assuming it was not statutorily barred, both Trump and the government waived any right to now move for substitution by failing to request substitution after the case returned to the District Court following earlier appellate proceedings. Finally, and in any event, principles of equity counsel in favor of denying the belated motion….

Back in April, Judge Boasberg all but announced that he would appoint a special counsel to bring criminal contempt proceedings against Trump Administration officials. I wrote about those orders here, here, and here. A divided D.C. Circuit panel granted a stay (Katsas and Rao), with Judge Pillard in dissent. Today, the panel issued a divided opinion. Judges Katsas and Rao granted the government's mandamus petition, while Judge Pillard would have denied it. Judges Katsas and Rao agree on the bottom line, but they disagree on the reasoning. One particular point of disagreement has some significance for future proceedings.

Judge Katsas found that Judge Boasberg lacks jurisdiction to initiate any further proceedings, since the Supreme Court found that this case belongs in Texas, not D.C.

The impact of jurisdictional defects in subsequent criminal-contempt proceedings is unclear. Many cases hold that a court may not impose criminal contempt for violation of an order that it lacked jurisdiction to enter. The Supreme Court explained: "When … a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void." Ex parte Fisk, 113 U.S. 713, 718 (1885); see, e.g., Ex parte Burrus, 136 U.S. 586, 597 (1890); In re Sawyer, 124 U.S. 200, 221–22 (1888); Ex parte Ayers, 123 U.S. 443, 485 (1887); Ex parte Rowland, 104 U.S. 604, 612–13 (1881). Two subsequent cases arguably weakened this rule, though neither purported to overrule these precedents. United States v. United Mine Workers of Am., 330 U.S. 258, 289–95 (1947); United States v. USCA Case #25-5124 Document #2129262 Filed: 08/08/2025 Page 36 of 110 Shipp, 203 U.S. 563, 573–75 (1906). Accordingly, as late as 1991, several circuits still recognized the traditional rule. See, e.g., In re Novak, 932 F.2d 1397, 1401 (11th Cir. 1991); In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 726–27 (9th Cir. 1989). In rejecting this view, the district court rested primarily on Willy v. Coastal Corporation, 503 U.S. 131 (1992), which held that courts may impose Rule 11 sanctions even in cases where they lack subject-matter jurisdiction. See id. at 137–39; Mem. Op. at 19–20. But in Willy, the Supreme Court reasoned that sanctions are collateral to the merits, so judges may require "those practicing before the courts to conduct themselves in compliance with the applicable procedural rules" while a case remains pending. 503 U.S. at 139. This rationale has no obvious application to injunctions restricting the primary conduct of parties outside of court, as opposed to the secondary conduct of parties in litigation. Indeed, the matter at issue in Willy—a monetary sanction of counsel's "careless pleading," id. at 133—is leagues apart from an injunction restricting the Executive Branch from carrying out a significant, cross-border, national-security operation.

As I read Katsas, the matter would end here, and Judge Boasberg can do no more with this case. That was my take back in April.

But based on my quick read, I'm not sure that Judge Rao agrees with that position. She finds that Judge Boasberg erred by using the threat of criminal contempt to obtain compliance with the initial TRO. The so-called "purge" option was an impermissible blending of civil and criminal contempt.

The purpose and effect of this preliminary order is to compel the government to exercise its foreign affairs powers to assert custody of the removed gang members. Id. at *20. The district court acknowledged that it can no longer coerce this action through civil contempt because its order was vacated by the Supreme Court. See id. at *8 (invoking the collateral-bar rule, which is available only in criminal contempt). Lacking the power to coerce the government, the district court nonetheless sought to achieve the same result with the threat of criminal contempt. Dangling this sword of Damocles to compel the Executive to exercise its foreign affairs powers exceeds the court's authority and is an abuse of discretion.

But Judge Rao did not rule out criminal contempt, in the abstract. Rao wrote:

Punishment through criminal contempt might still be available in these circumstances, but the district court cannot use the threat of such punishment as a backdoor to obtain compliance with a vacated and therefore unenforceable TRO.

A lot hangs on the word "might" (emphasis in the original).

Judge Pillard, in dissent, read Rao's opinion as saying the proceedings can continue. She wrote:

If we accept that the district court has jurisdiction to consider criminal contempt as a standalone matter, which Judge Rao does not appear to question, the inclusion of a "purge" option that defendants are entirely free to pretermit makes the order, if anything, less onerous.

If I'm reading the opinions correctly, Judge Boasberg on remand would have jurisdiction to proceed with some form of criminal contempt, minus the "purge" option that Judge Rao objected to.

Finally, Judge Katsas raised the Donziger problem.

Then the district court "will" appoint a private attorney to prosecute the Executive Branch, Mem. Op. at 44, which presents its own difficulties. The Supreme Court has held that courts "possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987). But that holding is hard to reconcile with that Court's more recent insistence that "[t]he Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States." United States v. Texas, 599 U.S. 670, 678–79 (2023); see also Donziger v. United States, 143 S. Ct. 868, 868–70 (2023) (Gorsuch, J., dissenting from denial of certiorari). In any event, Young itself acknowledged that the prosecutor must be "disinterested," and decisions regarding the prosecution must therefore be "all made outside the supervision of the court." 481 U.S. at 807. But then who would supervise such a prosecutor? If nobody did, the prosecutor would be an unconstitutionally appointed principal officer. See United States v. Arthrex, Inc., 594 U.S. 1, 18–19 (2021); United States v. Donziger, 38 F.4th 290, 296 (2d Cir. 2022). And if court-appointed prosecutors must be subject to supervision by the Attorney General, as the Second Circuit held in Donziger, see 38 F.4th at 299–300, then the private-prosecutor route will be as futile as it is provocative. Finally, the district court

Allowing Judge Boasberg to appoint a special counsel that is not supervised by anyone, and could not be removed, would be like a chimera between Alexia Morrison, Jack Smith, and Chief Judge Kimberly Moore--an unchecked prosecutor with absolute power, accountable to no one, assigned to take down a coordinate branch of government. What can go wrong?

From Prof. Alan Rozenshtein at Lawfare:

Alongside last month's "AI Action Plan"—a broad strategy for promoting innovation while managing risks—last month the Trump administration also issued several executive orders. One of these, titled "Preventing Woke AI in the Federal Government," directs federal procurement of artificial intelligence (AI). It mandates that any large language model (LLM) purchased by the government adhere to two "Unbiased AI Principles": "truth-seeking" and "ideological neutrality."

The executive order raises three distinct questions that get to the heart of current debates over technology, law, and politics. First, is the order a constitutional exercise of the government's procurement power, or does it violate the First Amendment? Second, regardless of its legality, are the principles it champions good policy for government AI systems? And third, what does the order's strange blend of MAGA rhetoric and technocratic policy reveal about how this administration operates?

The short answer is that the order is likely constitutional, its principles are normatively reasonable (if imperfectly articulated), and its structure shows the compromises necessary when trying to make rational policy under an irrational regime.

Read the whole thing here.

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

New cert petition: In March, the Eighth Circuit created a circuit split over how to calculate the just compensation owed to property owners when private companies condemn their land for natural gas pipelines. According to every other court, state-law rules govern property, so private companies have to pay you whatever state law says it's worth. But the Eighth Circuit says everybody else has been getting it wrong for 40 years and that private pipeline companies must be allowed to soar, like birds, free from pesky state property laws. And yet, "every other circuit court is wrong" seems like a job for SCOTUS, so that's where we're going.

New on the Short Circuit podcast: A crazy high speed chase leads to a crazy prosecution of a dude who was high and happened to own a rifle.

FBI agent accepts $6,500 from a friend to look up contact information in a non-public database for tenants who are leasing property in D.C. so that he can buy the tenants' right to purchase the property and resell those rights at a profit. The (now-former) agent is charged with and convicted of bribery. D.C. Circuit: Looks like bribery to us. Dissent (furiose): This "ill-considered," "[i]nscrutable," "profoundly disturbing" decision "converts ethical constraints into federal criminal offenses."
Your summarist finds it outrageous—indefensible!—that some judges brazenly use the phrase "Hobson's choice" to refer to mere dilemmas. In perhaps more significant news, the D.C. Circuit has granted mandamus relief to the Trump administration, which was facing a criminal contempt inquiry for removing alleged members of the transnational criminal gang Tren de Aragua to El Salvador in defiance of a TRO telling them not to. Judge Katsas argues the TRO was ambiguous. Judge Rao argues that there are serious separation-of-powers concerns. And Judge Pillard, in dissent, is not having any of it.
Read More

Today, in J.G.G. v. Trump, a divided panel of the U.S. Court of Appeals vacated Judge Boasberg's order finding probable cause that Administration officials were in criminal contempt of court for failing to prevent government officials from transferring alien detainees from U.S. custody. Judge Katsas and Judge Rao agreed that the government's petition for a writ of mandamus to vacate the order was justified, albeit on separate grounds. Judge Pillard dissented. All told, the opinions span over 100 pages.

After the jump are excerpts and summaries of the relevant opinions.

Under the settlement, Starbuck will advise Meta, the owner of Facebook, on efforts to curb what they describe as political bias in its AI tools…. During a CNBC interview Friday, Starbuck declined to say whether he had been paid by Meta as part of the settlement….

Meta has been working on removing political bias in its AI tools. AI systems have historically leaned left on contentious political and social topics based on how they have been trained, Meta said in a blog post in April.

"Our goal is to remove bias from our AI models and to make sure that Llama can understand and articulate both sides of a contentious issue," Meta said in the post, referring to its AI model.

From a joint statement by Meta and Starbuck (as reported by Fox Business (David Spector)):

Both parties have resolved this matter to our mutual satisfaction. Since engaging on these important issues with Robby, Meta has made tremendous strides to improve the accuracy of Meta AI and mitigate ideological and political bias. Building on that work, Meta and Robby Starbuck will work collaboratively in the coming months to continue to find ways to address issues of ideological and political bias and minimize the risk that the model returns hallucinations in response to user queries.

Here's my post from April about the now-settled lawsuit:

An opinion Wednesday by Chief Judge Thomas Kleeh (N.D. W. Va.) in Foundation Against Intolerance & Racism, Inc. v. Pickens deals with a rule of the West Virginia state bar, which is organized as a government agency under the control of the state supreme court. The rule provides,

The Board of Governors [of the state bar] shall consist of the following twenty-five voting members and one non-voting member:

The president, president-elect, vice president, and immediate past president;

One governor from each of the sixteen State Bar districts set forth in Bylaw 5.04;

Three additional governors from State Bar District Eight;

One African-American lawyer elected as described in Bylaw 5.06;

The Chairperson of the Young Lawyer Section; and

The Dean of the West Virginia University College of Law, as a non-voting member.

The long opinion focuses mostly on procedural matters, but it also concludes that "The Fifteenth Amendment applies to State Bar elections because the elections are state-sanctioned and involve public issues":

The Fifteenth Amendment provides, in pertinent part, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." It is "simple in command," "comprehensive in reach," "[f]undamental in purpose and effect," and "self-executing in operation[.]" In analyzing whether the Fifteenth Amendment is implicated in an election, "[t]he vital requirement is State responsibility — that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which" individuals are "denied voting rights merely because" of their race or color. "The Amendment grants protection to all persons, not just members of a particular race." …

From a decision Tuesday by Judge Brantley Starr (N.D. Tex.) in Richards v. X Corp. & Trump:

Richards is an active user on X, formerly known as Twitter, where he alleges he has built a following and shares his sincerely held beliefs. X Corp. owns and operates the platform. Richards alleges that X Corp. removed most of the content posted to his account and subjected his content to "shadowbanning." Richards seeks recovery under the theory that X is subject to constitutional constraints because X Corp.'s owner and controller, Elon Musk, "simultaneously holds significant federal authority." …

Richards asks this Court to "[o]rder President Trump to cease coordination with private platforms for religious speech suppression and issue executive directive prohibiting federal agencies from using AI systems with documented religious bias for government functions." The Court is flattered but does not think that highly of itself.

Richards sues President Donald J. Trump in his individual capacity but asks the Court to make him perform official duties. Suing a government official in his individual capacity is a bar on injunctive relief related to his official duties….

Richards [also] seeks "tiered injunctive relief," against X Corp. and asks the Court to enter an order that (1) requires X Corp. to restore "all of Plaintiff's historical content" to "original visibility settings," and (2) requires X Corp., among other things, to remove "all algorithmic throttling and visibility filtering" from Richards's account and restore access to Richards's bot accounts. In his third motion, Richards also asks the Court to prohibit X Corp.'s use of certain AI systems; require X Corp. to provide Richards with "real-time algorithmic transparency;" and "[o]rder immediate disclosure to major media outlets of the constitutional violations documented" in the TRO….

My article, Religious Hiring Beyond the Ministerial Exception, argues that religious groups have six potential legal defenses when they fire a non-minister (like a secretary or janitor) for violating the group's beliefs about sex or marriage. Some defenses are statutory, like Title VII's religious exemption. Others are constitutional, like the church-autonomy doctrine or the freedom of expressive association.

With several defenses to choose from, how should courts resolve these cases? In today's post, I'll first explain and critique how courts are currently addressing these cases—namely, by expanding the ministerial exception to apply to all of them. I'll then argue that some cases should be resolved differently—by not shying away from defenses like Title VII's religious exemption and church autonomy, which are specifically tailored to a religious group's interest in maintaining religious qualifications for employees.

What Courts Are Doing

Since the Supreme Court's decision in Bostock, federal circuit courts have resolved four sex-discrimination claims by employees who were dismissed for violating a religious group's teachings on marriage. All four cases reached the same result: The courts applied the ministerial exception and declined to address alternative defenses. But in three of those cases, one judge concurred, arguing that the claims were also barred by Title VII's religious exemption. (Disclosure: I helped represent the defendants in all four cases.)

Donald Trump plans to order a new census that excludes undocumented immigrants from the population count used to determine apportionment of congressional seats:

President Donald Trump announced in a social media post on Thursday that he has directed the Department of Commerce to begin work on a new US census that excludes undocumented immigrants from the population count.

"I have instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024," Trump wrote in a Truth Social post.

"People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS," the president added.

This is obviously unconstitutional, for reasons outline in an amicus brief University of Texas law Prof. Sanford Levinson (one of the nation's leading constitutional law scholars) and I filed in the 2020 Supreme Court case of Trump v. New York, which arose the last time Trump tried this same ploy. Here's an excerpt from the brief summarizing some of our key points:

The Constitution requires the federal government to apportion congressional seats "among the several States" based on the number of "Persons" in each State. U.S. Const. art. I, § 2; see id. amend. XIV. In an unprecedented decision, the President has made it "the policy of the United States to exclude from the apportionment base aliens who are not in lawful immigration status…." Because that policy flouts the Constitution's text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….

[E]xcluding undocumented immigrants is at odds with the Apportionment Clause's command that the government base congressional apportionment on the number of "Persons" living in each State. U.S. Const. art. I, § 2. "Persons" is a broad term and was equally broad at the founding. Then, as now, it referred to all human beings.

While that plain language is broad enough on its face to include undocumented immigrants living in a State, surrounding words and text from elsewhere in the Constitution reinforce that the Framers understood "Persons" as a broad and general term. For instance, the Apportionment Clause excludes "Indians not taxed" from the apportionment count. Because Indians were considered noncitizens with allegiance to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment base if "Persons" excluded foreigners or those with an allegiance to a sovereign other than the United States. The Constitution's use of "Citizens" in other provisions also underscores that the Framers distinguished between "Persons" and "Citizens"—a subset of "Persons…."

Appellants' contrary arguments cannot overcome these points. Appellants never address the ordinary meaning of "Persons" or the "Indians not taxed" provision, which would be superfluous if the Framers understood "Persons" to exclude foreigners. Instead, Appellants rely on the Apportionment Clause's language before it underwent stylistic changes in the Committee of Style. Because that language based apportionment on the number of "inhabitants," not "Persons," Appellants contend that the Framers intended to exclude foreigners. Appellants distort the meaning of "inhabitants." According to the founding-era sources Appellants cite, inhabitants are those people who intend to stay somewhere indefinitely. Undocumented immigrants, by and large, intend to stay in the United States indefinitely. Appellants' conjecture that some of these immigrants may be removed at some point cannot alter those persons' intention to remain here. That intention is what matters.

Sandy Levinson and I differ on a wide range of disputed constitutional issues - many more than we agree on. But we are in complete agreement here.

The brief goes into some detail on such issues as why undocumented immigrants are different from tourists and foreign diplomats (who historically have not been counted for apportionment), and why there is nothing unusual or intrinsically objectionable about including people in apportionment counts who did not have the right to vote. Indeed, for much of American history, a substantial majority of those counted for apportionment did not have that right.

I also outlined many of the same points in an October 2020 Los Angeles Times op ed.

The Supreme Court ultimately dismissed the case on procedural grounds, holding that the plaintiff states lacked standing, because it wasn't yet clear whether and to what extent Trump would actually manage to exclude undocumented immigrants from the census (he ultimately failed to achieve much before leaving office on January 20, 2021).

This time around, Trump may be able to go further down this road. If so, the Supreme Court may need to resolve the issue on the merits. When and if that happens, the right answer should be clear.

From Tuesday's decision by Judge Kathleen Miller (Del. Super. Ct.) in Delaware Human & Civil Rts. Comm'n v. Welch: which seems correct to me:

Shortly after Elaine and James Cahill … purchased a home in the Wilmington neighborhood of Boulder Brook Development …, they erected a six-foot stockade fence around the backyard. The Development is subject to a deed restriction which prohibits the erection of any fence without prior approval of 1/3 of the residents in the Development, including the residents of each contiguous or adjacent lot. If approval is obtained, the fence must be "open face" and no more than four feet.

The Cahills did not seek approval before erecting the fence. The adjacent residents, Elmer and Wilma Yu … and Christine Welch …, objected to the fence. When the Cahills refused to remove it, the Yus and Welch filed a petition in the Court of Chancery seeking a declaration that the fence violated the deed restriction and a mandatory injunction compelling its removal.

After the action proceeded for over six months, the Cahills asserted that the fence was a reasonable accommodation for their ongoing health issues, as provided in the Delaware Fair Housing Act …. Thereafter, the Cahills moved to stay that action to allow them time to pursue a claim with the Delaware Human and Civil Rights Commission … for violation of the Act. The stay was denied.

After the Senior Magistrate issued a Final Report ruling in favor of the petitioners and ordering removal of the fence, the Commission filed this action. The Commission claims that the Court of Chancery petitioners (defendants here) violated the Fair Housing Act by continuing to pursue that action after they learned of the Cahills' need for a reasonable accommodation. {The complaint asserts that Mrs. Cahill is disabled, … [and] utilizes an emotional support animal [a Yorkshire Terrier]. The complaint alleges that despite knowing of Mrs. Cahill's disabilities and need for a reasonable accommodation [apparently referring to fencing that would keep the terrier from escaping -EV], the Chancery Petitioners engaged in discriminatory conduct by pursuing the Chancery Action, which resulted in an order mandating removal of the Fence.} The Court of Chancery action is now stayed pending resolution of this case.

The Commission, on behalf of Elaine Cahill, seeks an injunction, a finding that the fence is a reasonable accommodation which supersedes the deed restriction, and an award of damages….

Thanks to Eugene for inviting me to guest-blog about my forthcoming article, Religious Hiring Beyond the Ministerial Exception. My first post laid out how appellate courts are grappling with an important question that will likely reach the Supreme Court soon: What legal protections do religious groups have when they fire a non-minister (like a secretary or janitor) for rejecting the group's religious teachings on sex or marriage? I then explored two potential protections: Title VII's religious exemption and the First Amendment's church-autonomy doctrine.

Today I'll argue that a different First Amendment protection—the right of expressive association—also protects religious hiring by religious groups.

What Is Expressive Association?

Unlike the church-autonomy doctrine, the right of expressive association is not rooted in the Religion Clauses; it is rooted in the Speech Clause (or, as some cogently argue, the Assembly Clause). The basic idea is that freedom of speech necessarily entails the right to gather with others—to associate—to engage in speech. The right of expressive association, then, protects the right to associate with others (or not to associate) for expressive purposes.

The leading case is Boy Scouts v. Dale. There, the Boy Scouts dismissed a scoutmaster for being a "gay rights activist," and the scoutmaster sued, alleging his dismissal was illegal sexual-orientation discrimination. But the Supreme Court rejected his claim, explaining that the First Amendment freedom to associate "presupposes a freedom not to associate," and that requiring the Scouts to retain the scoutmaster would unconstitutionally "force the [Scouts] to send a message … that [it] accepts homosexual conduct as a legitimate form of behavior."

From Poe v. Drummond, decided today by the Tenth Circuit (Judge Joel Carson, joined by Judges Harris Hartz and Gregory Phillips), upholding an Oklahoma statute that "prohibits healthcare providers from 'provid[ing] gender transition procedures' to anyone under eighteen."

Parent Plaintiffs assert a substantive Due Process claim arguing that SB 613 impinges on their fundamental right to make medical decisions for their minor children….

Parents have the right "to make decisions concerning the care, custody, and control of their children," which includes "to some extent, a more specific right to make decisions about the child's medical care," But we and the Supreme Court have held that parents do not have an absolute "right to direct a child's medical care." …

We … have consistently held that individuals do not have an affirmative right to specific medical treatments the government reasonably prohibits. We have held that although patients have a fundamental right to refuse treatment, the "selection of a particular treatment … is within the area of governmental interest in protecting public health." Thus, the government has the "authority to limit the patient's choice of medication," whether the patient is an adult or a child.

The parent-child relationship does not change our reasoning, and to conclude otherwise would allow parents to "veto legislative and regulatory polices about drugs and surgeries permitted for children." LAlthough parents have authority over their children's medical care, no case law "support[s] the extension of this right to a right of parents to demand that the State make available a particular form of treatment." In fact, the state's interest in a child's health may "constrain[] a parent's liberty interest in the custody, care, and management of her children." So our Nation does not have a deeply rooted history of affirmative access to medical treatment the government reasonably prohibited, regardless of the parent-child relationship….

The Volokh Conspiracy

Justice Sotomayor on Supreme Court Term Limits

A bit of cold water on a popular Court "reform" from a justice on the left-wing of the Court

Sixth Circuit Rejects Associational Standing in Medicare Drug Pricing Challenge

An easy way to avoid the merits in the latest high-stake health care litigation.

Seventh Circuit Upholds Indiana Alcohol Laws Without a Majority Opinion

After one judge died, the two remaining judges could not agree on why the state should prevail.

Friday Open Thread

What's on your mind?

Libel Lawsuit Over "Billionaire's 'Baby Project' Story" Dismissed

The sub-title of defendant Bloomberg Businessweek's article stated, "Disgraced tycoon Greg Lindberg built a network of egg donors and surrogates. Several say he conned them—and that the US fertility clinics helped him do it."

President Trump Loses Bid to Have U.S. Substituted in His Place in Carroll v. Trump Libel Case

Does Judge Boasberg Still Have Jurisdiction To Pursue Criminal Contempt Proceedings?

Judge Katsas says no, Judge Rao leaves open the possibility.

"Evaluating the 'Woke AI' Executive Order"

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

Lethal pepper spray, soggy eggs, and high-end swimwear.

Divided D.C. Circuit Panel Nixes Judge Boasberg's Criminal Contempt Order Against Trump Administration

Judge Katsas and Judge Rao disagreed on the reasons, but both agreed that Judge Boasberg overstepped; Judge Pillard dissented.

AI Libel Suit by Conservative Activist Robby Starbuck Against Meta Settles

Fifteenth Amendment Claim Against West Virginia State Bar's Reserving Board Seat for an "African-American Lawyer" Can Go Forward

Court Rejects TRO Request That Argued X Became a Government Forum When Musk Worked for the Government

Religious Hiring: What Courts Should Do

Courts don't need to stretch the ministerial exception to cover every case.

Delaware Agency Sues Homeowners Because They Sued Allegedly Disabled Neighbors Over Nonconforming Fence

No, says a Delaware judge: "Civil rights statutes" "do not eclipse the constitutional protections of the right to petition the government."

Religious Hiring and Expressive Association

Does the First Amendment freedom of expressive association protect religious hiring?

Ban on Gender Transition Procedures for Minors Doesn't Violate Parental Rights

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