The Volokh Conspiracy

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Free Speech

First Amendment Claim Over Firing of Firefighter for Supposedly Racially Offensive Anti-Abortion Post Can Go Forward

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From today's decision in Melton v. City of Forrest City, written by Judge David Stras, joined by Judges Lavenski Smith and Ralph Erickson:

Steven Melton is a pro-life, evangelical Christian. In June 2020, he reposted a black-and-white image on Facebook that depicted a silhouette of a baby in the womb with a rope around its neck. His intent was to convey that he was "anti-abortion."

Others did not view the image the same way. Two weeks after he posted it, a retired fire-department supervisor complained to Melton that he thought it looked like a noose around the neck of a black child. It upset him because the caption of the image, "I can't breathe!," was associated with the protests surrounding George Floyd's death. Melton agreed to delete it immediately.

Deleting it was not enough for Mayor Cedric Williams, who called him into his office the next day. Although Melton was "apologetic," the mayor placed him on administrative leave pending an investigation.  After a single day reviewing  Melton's Facebook page and discussing the post with the current fire chief, two retired firefighters, several attorneys, and a human-resources officer, the mayor decided to fire Melton over the image's "egregious nature."

He was concerned about the "huge firestorm" it had created. Among other things, the fire chief's phone had been "blowing up," "several" police officers had become "very upset," and the "phone lines" were jammed with calls from angry city-council members and citizens. Some said that Melton "should not be a part of the … fire department responding to calls." A few even said that they did not want "him coming to their house … for a medical call or fire emergency." According to the mayor, these complaints "threaten[ed] the City's ability to administer public services."

Melton was fired; he sued, claiming the firing violated the First Amendment, and the court allowed the claim to go forward:

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Housing Policy

My New Boston Globe Article on why Massachusetts Should Reject Rent Control, and Instead End Exclusionary Zoning

Rent control would only make the housing crisis worse. Zoning reform would make things better.

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Illustration: Lex Villena; Lev Kropotov

Today, the Boston Globe published my article on why rent control is a terrible approach to addressing the housing crisis. Massachusetts should instead ban exclusionary zoning. Here is an excerpt:

Massachusetts may have a rent control measure on its 2026 ballot, which would restrict rent increases throughout the state. Advocates claim rent control would alleviate the state's housing crisis. They couldn't be more wrong. Rent control is a proven failure that actually exacerbates housing shortages. The state should instead ban exclusionary zoning, which restricts the types of housing that can be built in a given area. That could truly alleviate shortages and make housing more affordable.

Rent control is condemned by a broad consensus of economists and housing experts across the political spectrum. Jason Furman, former chair of Barack Obama's Council of Economic Advisers, notes that "[r]ent control has been about as disgraced as any economic policy in the tool kit." A recent meta-study in the Journal of Housing Economics found that while it effectively slows rent increases in controlled units, it has multiplenegative effects, including reduction in the quantity and quality of available housing….

By contrast, ending exclusionary zoning across the state would greatly increase housing construction and reduce rents, while empowering property owners to have greater control over their land….

Extensive research by economists and other scholars finds that exclusionary zoning massively increases housing prices and prevents millions of people from "moving to opportunity" — taking up residence in places where they could find better jobs and educational options. Exclusionary zoning has a long history of being used to keep out minorities and poor people. It also greatly increases homelessness by pricing low-income people out of the housing market.

I grew up in Massachusetts — where my parents and I arrived as poor recent immigrants in 1980 — and owe much to the opportunities the state has to offer. Curbing exclusionary zoning would help ensure that more people of all backgrounds could access those opportunities….

Zoning is often viewed as a tool to protect the interests of current homeowners, many of whom support "NIMBY" ("not in my backyard") restrictions on building. But many homeowners would have much to gain from ending restrictions on housing construction. They would benefit from added economic growth and innovation, increases in the value of their property if it could be used to build multifamily housing, and lower housing costs for their children.

Current property owners would also benefit from having the right to use their land as they see fit. Advocates of local control of land use should embrace YIMBYism ("yes in my backyard"): Letting property owners decide how to use their own land is a far greater level of local control than allowing local governments to impose one-size-fits-all regulations.

YIMBY zoning reform unites experts across the political spectrum. Supporters range from progressives such as Furman and former president Joe Biden's Council of Economic Advisers to free-market advocates such as Edward Glaeser of Harvard, one of the world's leading housing economists….

There is much room for zoning-reform progress in Massachusetts. The National Zoning Atlas recently surveyed the state's zoning rules and found that about 63 percent of the state's residential land is restricted to single-family homes only (including some where multifamily construction is permitted only after a special public hearing, which can be easily manipulated by NIMBY forces to block development). Many communities also have other severe restrictions, such as minimum lot sizes and parking mandates (imposed on 76 percent of residential land).

I would add that most of these problems are far from unique to Massachusetts. Other states should also reject rent control and instead embrace YIMBYism.

Judiciary

On the Status of Judicial Independence in the American Constitutional Order

My new paper on judicial independence as a constitutional construction

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I have posted a new paper on "Judicial Independence as a Constitutional Construction."

The paper builds on the notion of constitutional construction and the role constructions play in our constitutional politics and in structuring the workings of our constitutional system. It focuses on the specific context of judicial independence and contestation over how valuable that ideal actually is and how it should be realized in practice. Current proposals to reform the courts might unsettle long-established understandings of how the judiciary should operate, but such efforts to unsettle and reform established constitutional practices and understandings have happened before.

From the abstract:

An independent judiciary, in the American context, might best be understood as a constitutional construction. That is, it is a politically constructed set of practices, institutions, and norms that extend but do not contradict the legal requirements of the formal constitution. As such, judicial independence has come to occupy a fundamental status within our inherited constitutional order. But importantly, it is mutable. Our inherited practice of judicial independence has been built up, and fought over, across time, and within the contours of the written constitution can be significantly reconstructed.

The example of judicial independence can serve as a useful illustration of the significance of unwritten practices to our constitutional order. This also provides an opportunity to examine how judicial independence was constructed, and contested, across American history. As current activists and politicians raise questions anew about the future of judicial independence in America, these current debates can be situated within a long history of debates about the proper role, composition, and structure of American courts. This Article reviews those debates regarding federal courts in the Jeffersonian era, state courts in the Jacksonian era, and the Supreme Court in the New Deal era.

 

Privacy

Saudi Activist's Claims Against Alleged Hackers for UAE Government Can Go Forward

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From Judge Karin Immergut (D. Or.) yesterday in Alhathloul v. DarkMatter Group:

This case involves allegedly unlawful actions by Defendant DarkMatter Group ("DarkMatter"), a software company based in the United Arab Emirates, and three of its former senior executives, Marc Baier, Ryan Adams, and Daniel Gericke (the "individual Defendants" and, together with DarkMatter, the "Defendants"). Plaintiff Loujain Alhathloul, a prominent Saudi women's rights activist, alleges the Defendants hacked her iPhone, surveilled her movements, and exfiltrated her private data. Plaintiff alleges the hack facilitated her arrest in the United Arab Emirates and rendition to Saudi Arabia, where she alleges she was imprisoned and tortured. Plaintiff alleges all Defendants violated the Computer Fraud and Abuse Act ("CFAA"), and conspired together and with Emirati officials to violate the CFAA. She also alleges the individual Defendants' actions constitute a crime against humanity actionable under the Alien Tort Statute ("ATS").

This Court concludes Plaintiff's FAC makes a prima facie showing of specific personal jurisdiction over all Defendants. Plaintiff's allegations that Defendants committed an intentional tort while Plaintiff was in the U.S., together with Defendants' other forum-related contacts, establish minimum contacts that arise out of Plaintiff's claims, and Defendants have failed to establish that exercising jurisdiction would be unreasonable. The motion to dismiss for lack of personal jurisdiction is therefore denied.

This Court also denies Defendants' motion to dismiss Plaintiff's CFAA and CFAA conspiracy claims. Finally, this Court declines to recognize Plaintiff's alleged tort of discriminatory persecution under the ATS and accordingly grants the individual Defendants' motion to dismiss that claim for lack of subject-matter jurisdiction….

Sixth Circuit

Are Opinions Respecting En Banc Denials "Offensive to Our System of Panel Adjudication"?

The judges on the U.S. Court of Appeals for the Sixth Circuit split over whether they should write about the reasons for their splitting over en banc review.

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Today the U.S. Court of Appeals for the Sixth Circuit denied rehearing en banc in Mitchell v. City of Benton Harbor, a case in which a divided panel concluded that Benton Harbor residents could sue the city and city officials for violating their substantive-due-process right to bodily integrity for failing to mitigate and adequately address lead contamination in the local water system. Judge Moore wrote the original panel opinion, joined by Judge Cole. Judge Larsen wrote separately, concurring in part and dissenting in part.

Today, Judge Larsen dissented from the courts denial of a petition for rehearing en banc, joined by Judges Kethledge, Thapar, Bush, Nalbandian, Readler, and Murphy. This dissent prompted a statement from Judge Moore, decrying the growing practice of dissents and other opinions or statements respecting en banc denials. (In this regard, Judge Moore echoed some concerns raised by Judge Wynn on the Fourth Circuit several years ago.) Judge Moore's opinion, in turn, prompted a second dissent from the en banc rehearing denial by Judge Readler, joined by Judge Bush, expressly addressing the question of whether there are two many opinions respecting the denial of rehearing en banc. (Answer: No.).

Judge Larsen's dissent begins:

The court concludes that several City of Benton Harbor officials plausibly violated city residents' clearly established substantive due process right to bodily integrity. How? Each official is alleged to have engaged in slightly different conduct. But to take one, consider the case of Mayor Marcus Muhammad. At a press conference, he informed residents that the water in some city homes had dangerous levels of lead, and he advised them that they could work with the City to test their water. He also urged them not to panic; and that, according to the court, crossed a clearly established constitutional line because it "undermined" the rest of the message. Mitchell v. City of Benton Harbor, 137 F.4th 420, 437 (6th Cir. 2025). In other words, the court strips Muhammad of qualified immunity for not delivering the warning with the (now) constitutionally required tone of alarm.

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Free Speech

"Reporters Without Borders' Stance on US-Brazil Policy Undermines Press Freedom"

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From Jacob Mchangama (The Bedrock Principle), a leading scholar of free speech history and of international speech restrictions:

Last week, Reporters Without Borders (RSF) issued one of the more remarkable statements I've seen from a group dedicated to press freedom. It criticized the Trump administration for imposing 50% tariffs on Brazil in response to what the U.S. called the Brazilian government and judiciary's "unprecedented actions to tyrannically and arbitrarily coerce U.S. companies to censor political speech."

To be clear, there are fair reasons to question the administration's sincerity and its focus on Brazil. Why, for instance, isn't the U.S. going after Russia, which has long banned U.S. tech companies for spreading "illegal content" and fined Google $360 million in 2022 and $78 million this year for failing to remove "prohibited material"? Meanwhile, the administration's own record on speech and press freedom at home severely undermines its credibility when criticizing wrongdoings abroad.

But these were not RSF's objections. Instead, one of the world's best-known press-freedom organizations effectively endorsed Brazil's approach:

"Using free speech as a pretext for trade sanctions is both cynical and misleading. Freedom of expression does not excuse disinformation, and it is not a shield for corporate influence. Brazil must not back off legitimate regulatory efforts designed to strengthen the right to reliable information and protect democratic debate online. Initiatives to counter disinformation, hate speech, and online harm are essential to protect journalism and democratic debate."

According to RSF, prohibiting "disinformation" is not only legitimate but necessary—and it strengthens, rather than weakens, journalism and democratic debate. That's an unusual stance for a press-freedom group….

Much worth reading in its entirety.

Free Speech

Arkansas Ban on Youth Gender Transition Procedures Upheld, Including Restriction on Referrals for Such Procedures

But the restriction appears to cover only referrals for illegal in-state procedures, and not referrals for legal out-of-state procedures.

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Today's en banc Eighth Circuit opinion in Brandt v. Griffin, written by Judge Duane Benton, held—largely relying on the Supreme Court's decision this Summer in U.S. v. Skrmetti—that the Act doesn't involve a presumptively unconstitutional sex classification or a transgender status classification. It also held that the Act doesn't violate parents' "right to provide appropriate medical care for their children," for much the same reasons given by panels in the Tenth Circuit and Sixth Circuit. And the court said this as to the prohibition on referrals:

[T]he Supreme Court recognizes that the First Amendment "does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." National Inst. of Family & Life Advocates v. Becerra (2018). "States may regulate professional conduct, even though that conduct incidentally involves speech." In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld a provision compelling physicians to provide information to patients about the risks of abortion. The plurality opinion recognized that the requirement "implicated" a physician's First Amendment rights, "but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Planned Parenthood of Southeastern Pa. v. Casey (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.), overruled on other grounds by Dobbs.

The question here is whether the Act regulates speech, conduct, or both. "While drawing the line between speech and conduct can be difficult," the precedents of the Supreme Court have long drawn that line. The district court interpreted "refer" in the Act to include "informing their patients where gender transition treatment may be available." … [But] this court should read "refer" according to its medical definition: "to send or direct for diagnosis or treatment." The whole of the Act supports this reading. The Act makes "unprofessional conduct" any "referral for or provision of" gender transition procedures for minors. This language supports that "refer" in Section 1502(b) means a formal "referral for" treatment, not merely informing patients about the availability of procedures.

Whether the Act "proscribes speech, conduct, or both depends on the particular activity in which an actor seeks to engage." A referral for treatment is not part of the "speech process." Rather, a referral is part of the treatment process for gender transition procedures.

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Police Abuse

Judge Wilson Denies the Justice Department's Motion to Dismiss a Police Excessive Force Conviction

Judge Wilson from the Central District of California rejects the Department's breathtakingly sweeping position that "what the Government says is the public interest in this courtroom."

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Last week I blogged about the Justice Department's effort to vacate a police officer's conviction for using excessive force. On behalf of the victim, co-counsel Caree Harper and I objected. And earlier today, the judge agreed with our arguments and denied the motion to dismiss. The found the proposed dismissal would be "contrary to the public interest" because it was designed to interfere with judicial sentencing authority. The ruling is an important step in protecting judicial review of the appropriateness of dismissals proposed by federal prosecutors.

I've previously described the facts of the case, involving a take-down by police of J.H. When she began recording the officer on her phone, he responded by slamming her to the ground and pepper spraying her. You can see for yourself: the relevant events were captured on video. The Justice Department filed a civil rights charge against the officer and, following a jury trial in February, he was convicted. But then the Department moved to reduce the charge down to a misdemeanor and asked the judge (Stephen Wilson, a Reagan appointee) for a sentence of probation. The judge reduced the charge to a misdemeanor, but rejected the Government's proposed probationary sentence as too lenient. The judge instead imposed a sentence of four-months in prison, in light of the officer's clear betrayal of the public trust. The Department then moved to dismiss the entire case, under Fed. R. Crim. P. 48(a). (I have discussed the history of Rule 48(a) at greater length in an earlier post in connection with the Eric Adams case.)

On behalf of the victim, Ms. Harper and I objected to the dismissal motion, urging the judge to reject it. Our argument was the Government was trying to control sentencing:

The Government's purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive. At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government's true basis for the dismissal motion is that it objects to the Court's prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.

Today, Judge Wilson agreed with our position, denying the motion to dismiss. The judge concluded that "the record reflects that the Government's newest Rule 48(a) motion is  motivated not by the discovery of new evidence or reconsideration of the case, but by disagreement with the Court's decision to sentence Defendant to four months in prison." The judge also noted that nothing had changed since the Government filed its earlier motion in the case asking for a sentence of probation—except that the court had sentenced the officer to a prison term.

Against this backdrop, Judge Wilson held that the Department's dismissal motion was contrary to the public's interest in protecting judicial sentencing authority:

The motion is a direct attempt to override the Court's decision to sentence Defendant to four months in prison. Indeed, after the Court rejected its request for probation and imposed a custodial sentence, the Government responded by seeking to dismiss all  charges—ensuring Defendant serves no time at all. Put simply, the Government disagrees  with the Court's sentencing decision and is using Rule 48(a) to erase it. It has even  acknowledged that this is its reason for seeking dismissal.

Judge Wilson also rejected the Department's claim that it was entitled to determine by itself whether the court's sentence was fair:

The Government seems to argue that, regardless of its motives, its prosecutorial discretion  alone is enough to justify granting a Rule 48(a) motion under any  circumstances, especially if the Defendant consents. When pressed to reconcile that view with the appellate courts' requirement that Rule 48(a) dismissals not be contrary to the "public interest," the Government argued that the public interest is "what the government says is the public interest in this courtroom." The Government is wrong—at this stage, it does not have unbounded discretion to dismiss cases. The history of Rule 48(a) makes that clear (emphasis added).

Judge Wilson concluded that denial of the motion to dismiss was required to protect separation of powers principles:

In sum, even considering the significant discretion afforded to prosecutors to decide  whether to bring or maintain a case, the Court may deny a Rule 48(a) motion when  dismissal is clearly contrary to the public interest. This is such a case. The record shows  that the Government filed this motion to overturn the Court's four-month prison sentence for Defendant. A post-sentence Rule 48(a) motion aimed at undermining the Judiciary's sentencing authority violates separation of powers principles, and, for that reason, is contrary to the public interest.

This case now moves to the Ninth Circuit, to which the defendant has already appealed. And I have already filed a motion there, asking for Ms. Harper and me to be appointed to defend the judgment below—i.e., to defend the conviction and four-month prison sentence in Judge Wilson's judgment. Such an appointment seems to be the standard practice of courts in considering appeals where the parties are no longer adversarial.

More broadly, Judge Wilson's ruling makes clear that courts possess authority to reject Rule 48(a) dismissal motions from federal prosecutors based on considerations of the public interest. And, contra to the Government's sweeping claim, the "public interest" does not automatically equate with the Government's interest. Judge Wilson's ruling could be persuasive to other judges who are considering similar questions about dismissal motions in other cases, such as my U.S. v. Boeing case where the Department has also filed a dubious motion to dismiss.

Higher Education

The University Presidents Who Want to Fix Universities Before They Get Fixed

University Presidents are divided on how to respond to pressure from the Trump Administration. Are their concerns too little, too late?

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For well over a decade I have been of the view that universities need to fix themselves, or they will get fixed--and that getting fixed is likely to be more destructive than restorative. Until recently, I held this view with regard to public universities in red and purple states, but I probably underestimated the extent to which universities had alienated large portions of the public and undermined their own reservoirs of political support--and did not anticipate the focus with which some Trump Administration officials would target universities. To be sure, the Supreme Court's SFFA decision, which effectively declared the de facto admissions policies at most elite universities to be illegal, and the wave of campus anti-Semitism only made universities more vulnerable.

The Atlantic has an interesting article on the growing divide among some university presidents about how to respond to the Trump Administration and current political pressures. On one side are folks like Princeton's Chris Eisgruber, who seem to think there is nothing wrong and that universities can and should ride out the storm. (Those we might call the ostriches of academia.) On the other are those like Daniel Diermeier of Vanderbilt and Andrew Martin of Washington University, who recognize that universities need to reform themselves. The latter camp accept the charge made by folks like Michael Clune that universities have brought much of their current trouble upon themselves.

This is how the article describes the "reformers":

The Reformists believed that higher education had a problem even before Trump was reelected. They watched as conservative speakers were shouted down or disinvited from campuses. They saw professional organizations publicly commit themselves to positions that sounded more like activism than scholarship. (The academics who make up the American Anthropological Association, to cite one example, announced in 2020 that their "research, scholarship, and practice" should be placed "in service of dismantling institutions of colonization and helping to redress histories of oppression and exploitation.") After the Hamas invasion of southern Israel on October 7, 2023, the reformists watched as anti-Israel protesters on other campuses occupied buildings, erected encampments, and, in some cases, engaged in overt anti-Semitism. "You can't look at what happened on many university campuses last academic year and conclude that everything is just fine," Martin told me.

Early last year, Martin and Diermeier began working on a Statement of Principles for higher education. "If research universities are to pursue the truth wherever it lies, they cannot have a political ideology or pursue a particular vision of social change," they wrote. Their university boards adopted the principles as official policy in the fall of 2024, before the presidential election. "Our view was, we have to proactively work on the reform of education, which meant most importantly to be firmly committed to knowledge creation and transmission," Diermeier, who previously served as provost of the University of Chicago, told me.

Note that Martin and Diermeier (like Clune) expressed this view before the Trump Administration took office -- but that the Trump Administration's efforts make reform even more urgent.

The reformers think the resistance presidents are delusional for believing that their problems will go away when Trump does. They see the president's attacks as symptomatic of a larger issue. Polling shows that confidence in American higher education has cratered in recent years, especially among Republicans. "The fundamental fact here is that we have never been in worse shape in my lifetime," Diermeier told me. The reformer presidents, who tend to be in red or purple states, think the resistance leaders are trapped in liberal echo chambers. "It's clear that the bipartisan support has eroded," Martin told me. "It's really misguided to think that what's happening in higher education is a blip and that we're going to return to where we were before."

He and his allies believe that universities should have started cleaning up their act years ago. Now they're playing catch-up, and can't expect to stop just because Trump will someday leave office. . . .

Second Amendment Roundup: The Zero Tax on NFA Firearms

The $0 tax on firearms undercuts the constitutional basis of the National Firearms Act.

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The National Firearms Act, chapter 53 of the Internal Revenue Code, finds its basis in U.S. Const. Art. I, § 8, under which "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…."  It imposes special occupational taxes for businesses and making and transfer taxes on individual firearm transactions.  It is unlawful for a person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record," 26 U.S.C. § 5861(d), perhaps the most typical violation.

A "firearm" under the NFA includes eight categories, including short-barreled shotguns and rifles (and weapons made from shotguns and rifles under 26" overall length); "any other weapon" (small guns other than handguns); machineguns, silencers, and destructive devices.  § 5845.  Under H.R.1 – One Big Beautiful Bill Act of 2025, as reported by the Senate Finance Committee on June 16, 2025, § 5845 would have been amended to state: "The term 'firearm' means a machinegun or a destructive device."

As a reconciliation bill, H.R. 1 was subject to the Byrd Rule, under which an amendment is extraneous if it does not produce a change in outlays or revenues.  As I argued here, the bill would have complied because it produced a change in revenues by eliminating certain firearms as taxable.  The Senate parliamentarian opined otherwise.  The final version as passed did not change the definition of "firearm" at all, and instead amended the making and transfer taxes on all NFA firearms except machineguns and destructive devices to $0.

Before the amendment, the making and transfer tax was $200 per firearm (or $5 for "any other weapon").  While the tax is now zero on most firearms, one must still register each firearm and obtain ATF's authorization before making and transferring it.  Without any tax being imposed, the rug has been pulled out from the constitutional basis of the NFA.

In Sonzinsky v. U.S. (1937), the Supreme Court held that the NFA contained "no regulations other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose."  And in Haynes v. U.S. (1968), the Court described the National Firearms Act as "an interrelated statutory system for the taxation of certain classes of firearms."  Upholding Obamacare under the tax power in National Federation of Independent Business v. Sebelius (2012), Chief Justice Roberts cited Sonzinsky, writing that "we have upheld such obviously regulatory measures as taxes on … sawed-off shotguns."

Under H.R. 1, no revenue purpose is left for any of the firearms other than machineguns and destructive devices.  Requiring these other firearms to be registered produces zero in taxes, no different than firearms that are not included in the NFA.  The bill becomes effective on January 1, 2026.  Lacking any jurisdictional hook in the tax power or other constitutional delegation, it will be difficult to prosecute offenses for unregistered firearms (other than machineguns and destructive devices) possessed or transferred on and after that date.

Civil challenges have already commenced.  A complaint filed in the Eastern District of Missouri, Chris Brown v. ATF, challenges the pertinent provisions of the NFA not only on the lack of Congressional power under the revenue clause, but also challenges the restrictions on suppressors and short-barreled rifles under the Second Amendment.  Suppressors and short-barreled rifles pass the Heller test by being arms in common use, and NFA-type restrictions do not pass the Bruen text-history test.  Plaintiffs also include the NRA, Firearms Policy Coalition, Second Amendment Foundation, and American Suppressor Association.

Missouri is in the Eighth Circuit, which in U.S. v. Hall (1999) upheld the NFA under the taxing clause, but rejected an argument that the commerce clause would be a constitutional basis for the NFA.

A second challenge, Silencer Shop Foundation v. ATF, has been filed in the Northern District of Texas.  It is based solely on the lack of Congressional power to require firearm registration without any basis in the tax power.  Gun Owners of America and Firearms Regulatory Accountability Coalition are among its plaintiffs.

As long ago as U.S. v. Matthews (1971), the Fifth Circuit relied on Sonzinsky to uphold NFA provisions.  Not surprisingly, all circuits have rendered similar decisions.

I've covered these issues in detail in my article The Power to Tax, The 2nd Amendment, & the Search for Which "'Gangster' Weapons" To Tax.  From its inception in 1934, the NFA has been justified solely under the power to tax.

Based on the plain text of the constitutional power of Congress "to lay and collect Taxes" and the consistent Supreme Court precedents on the NFA, the Department of Justice should agree with the pertinent allegations of the above complaints and enter into consent decrees with the plaintiffs to the effect that the NFA may not be applied to any firearms other than machineguns and destructive devices, which remain subject to the tax.

Recognition that the NFA restrictions may no longer be applied to firearms (other than machineguns and destructive devices) does not leave these firearms unregulated.  All of them are still covered under Title I of the Gun Control Act, which subjects dealer sales to the NICS background check system, bans possession by felons and other categories of prohibited persons, and otherwise comprehensively regulates firearms.

D.C. Circuit Orders Trump Administration to Restore Public Database of Federal Expenditures

Judge Henderson writes a forceful opinion rejecting the Trump Administration's attempt to extend executive authority over federal spending.

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The Trump Administration has until Friday to restore a public database tracking the expenditure of appropriated funds. On Saturday, in CREW v. OMB, the U.S. Court of Appeals for the D.C. Circuit rejected the Administration's request for a stay pending appeal of a district court injunction ordering the database's restoration, but said the administration has until August 15 to comply.

Judge Karen Henderson issued a statement respecting the denial of the stay pending appeal, which Judge Wilkins joined. (Judge Garcia apparently joined in the order, but not Judge Henderson's opinion.) The opinion is a powerful rebuke of the Trump Administration's attempt to supplant legislative control over federal spending.

Judge Henderson's statement begins:

Throughout the 1600s, the Stuart monarchs engaged in a titanic struggle with Parliament regarding who would reign supreme over the public purse. That struggle was marked by civil war, regicide and a new wellspring of liberty in the Glorious Revolution of 1688. By the end of the upheaval, Parliament emerged supreme in matters of taxation and spending. Our Constitution followed suit, granting the Congress plenary control over the public fisc. Recently, the Executive has once again locked horns in a struggle for control over the purse strings. Across a slew of cases, recipients of congressional funding have challenged the President's ability to unilaterally freeze or "impound" spending.1 Today's case is but the latest chapter in the ongoing saga.

In 2022, the Congress enacted a statute requiring the Executive to create and maintain a public database to track the expenditure of congressionally appropriated funds. The Executive complied until March of this year when, amidst the burgeoning fight over impoundment, it informed the Congress that it now deemed the statute unconstitutional and would no longer comply with it. Two nonprofit organizations sued to restore the now disabled website and the district court entered a permanent injunction requiring restoration of the withheld data.

The Executive now asks this Court to stay that decision. To hear the Government tell it, the separation of powers hangs in the balance and only this Court can set things right. But when it comes to appropriations, our Constitution has made plain that congressional power is at its zenith. Because the Executive has not made the requisite showing to support its motion for a stay pending appeal, the motion must be denied.

And later in the opinion:

In a Republic, "the people may have an opportunity of judging not only the propriety of . . . appropriations, but of seeing whether their money has actually expended only, in pursuance of the same." St. George Tucker, supra, at 362. Despite their differences, Antifederalists and Federalists agreed that the citizenry had a right to know how the Government manages its money, not a privilege contingent upon the whims of the Executive. Their dispute was only over the wisdom of allowing the legislature to impose reasonable limitations on that right. Congressional power won out. And the Congress, as is its right, has opted to keep the citizenry informed by shedding more light on the appropriations process through the CAAs. The Constitution's text, structure and history uniformly cut against declaring the CAAs unconstitutional. The only question remaining is whether precedent compels a contrary result. It does not. . . .

As the Supreme Court has explained, the "Congress has plenary power to exact any reporting and accounting it considers appropriate." Richardson, 418 U.S. at 178 n.11; see also Harrington v. Bush, 553 F.2d 190, 194–95 (D.C. Cir. 1977) (reasoning that the "Congress has plenary power to give meaning to the" Appropriations Clause). Against that plenary power, the Government asserts that the CAAs risk revealing vaguely defined "sensitive," "deliberative" or "policy" information, thereby chilling OMB's communications. Gov't Br. 19–22. Yet the Government never explains why OMB cannot communicate any privileged information to the relevant agencies outside the apportionment document itself. All it offers is an unhelpful line that doing so would be less "efficient[]." App. 70 ¶ 15. That objection is, as the district court noted, a "policy disagreement with the [CAAs] without a constitutional foundation." CREW, 2025 WL 2025114, at *14.

The current administration is not the first to wince at congressional oversight over spending. "As Alexander Hamilton learned to his dismay, the reporting requirements in the hands of political opponents could be a prodigious mechanism for harassment." Jerry L. Mashaw, Recovering American Administrative Law, 115 Yale L.J. 1256, 1287 (2006). But if the Executive finds disclosure burdensome, it must seek relief from the Congress, not from the unelected judiciary. Our duty is to enforce the law—constitutional and statutory—and, absent an "irreconcilable variance" between the two, we cannot disregard a statute any more than we could the Constitution. The Federalist No. 78, at 467 (A. Hamilton) (C. Rossiter ed., 1961).

For these reasons, the Government has not shown that it is likely to succeed on the merits of its claim that the CAAs are unconstitutional.

Seventh Circuit Allows Teacher to Pursue Title VII Claim Against School for Requiring Him to Use Chosen First Names of Transgender Students

This case presents a religious accommodation claim, rather than a free expression claim.

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In 2021, in Meriwether v. Hartop, the U.S. Court of Appeals for the Sixth Circuit held that a university professor could pursue First Amendment free expression and free exercise challenges to Shawnee State University's policy that required professors to use students' desired pronouns. Eugene blogged on the case, and I participated in an Academic Freedom Alliance webinar discussing it.

This past week, the U.S. Court of Appeals for the Seventh Circuit considered some similar claims in Kluge v. Brownsburg Community School Corp. As with Meriwether, Kluge concerned a teacher's challenge to his school's policy as it relates to how teachers should refer to transgender students, but there are also some significant differences.

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Constitutional Interpretation

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

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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.

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Recent Volokh Posts

1

First Amendment Claim Over Firing of Firefighter for Supposedly Racially Offensive Anti-Abortion Post Can Go Forward

2

My New Boston Globe Article on why Massachusetts Should Reject Rent Control, and Instead End Exclusionary Zoning

3

Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case

4

On the Status of Judicial Independence in the American Constitutional Order

5

Wednesday Open Thread

6

Saudi Activist's Claims Against Alleged Hackers for UAE Government Can Go Forward

7

SCOTUS Redesigns The Docket Page

8

Are Opinions Respecting En Banc Denials "Offensive to Our System of Panel Adjudication"?

9

"Reporters Without Borders' Stance on US-Brazil Policy Undermines Press Freedom"

10

Arkansas Ban on Youth Gender Transition Procedures Upheld, Including Restriction on Referrals for Such Procedures

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