The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

From Friday's decision by Judge Raymond Patricco (D. Idaho) in Scofield v. Guillard:

This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted numerous TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light….

Plaintiff asserts two defamation claims against Defendant: one is premised upon the false statements regarding Plaintiff's involvement with the murders themselves, the other is premised upon the false statements regarding Plaintiff's romantic relationship with one of the murdered students.

On June 6, 2024, the Court granted Plaintiff's Amended Motion for Partial Summary Judgment …. On the issue of liability for Plaintiff's two defamation claims against Defendant, the Court concluded that Plaintiff sufficiently demonstrated the absence of any genuine issue of material fact relating to the falsity of Defendant's statements about her. Id. (after citing evidence, stating: "This is powerful evidence at the summary judgment stage. It not only substantiates Plaintiff's argument that Defendant's statements about her are false, it also highlights the complete lack of any corroborating support for Defendant's statements.").

Under Rule 56, this shifted the burden to Defendant to dispute that claim by setting forth facts showing that there is a genuine issue for trial relating to whether her statements about Plaintiff are true. In relying only on her spiritual investigation into the murders, however, the Court concluded that Defendant did not satisfy her burden. Id. ("As a result, Defendant's psychic intuition, without more, cannot establish a genuine dispute of material fact to oppose Plaintiff's summary judgment efforts."). The Court therefore concluded that "the totality of the evidence reveals that there is no genuine dispute as to any material fact that Defendant defamed Plaintiff."

Also on June 6, 2024, the Court granted Plaintiff's Motion for Leave to Amend Complaint to Add Punitive Damages. In permitting a claim for punitive damages, the Court concluded that Plaintiff "established a reasonable likelihood of proving, by clear and convincing evidence, that Defendant's conduct in accusing Plaintiff of an affair with a student before ordering that student's and three other students' murders was oppressive, fraudulent, malicious, and/or outrageous." The extent of Plaintiff's damages, if any, remains an issue for trial.

Defendant moved to reconsider, but the court said no:

Defendant claims that newly discovered evidence (in the form of filings in a related state court criminal proceeding) "provides factual support that substantiates the Tik-Tok videos [Defendant] posted regarding the murder of the four University of Idaho students …." Defendant maintains that she cannot be found liable for defamation because this newly discovered evidence proves that she was telling the truth in these Tik-Tok videos, or otherwise highlights outstanding issues of material fact that precludes summary judgment…..

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[This is a guest blog from a friend and colleague, Abner S. Greene, who is the Leonard F. Manning Professor at Fordham Law School and has been following the constitutional separation-of-powers issues at the heart of many of the current cases involving the scope of President Trump's powers for many years.]

Donald Trump's aggressive use of executive power in his second term threatens to upset the balance of power between President and Congress, and although courts have pushed back against Trump's excesses,[i] up-front hurdles and back-end limits render courts an imperfect check. In this essay I will describe an argument I made 30 years ago about the problem of expanded presidential power, explain the hurdles facing my suggestions for a better balance of executive-legislative power, discuss the limits of congressional power to check an unhinged President, and outline some difficulties with relying on courts to save the day.

In 1994, I published a law review article called "Checks and Balances in an Era of Presidential Lawmaking."[ii] I examined the records of the 1787 constitutional convention and looked closely at the Federalist Papers. From these materials, I concluded that "the framers were overwhelmingly concerned with either political branch aggrandizing its own power without sufficient checks. To the extent that there is any 'original understanding' of the division of power between the President and Congress, it is that both are to be feared, neither is to be trusted, and if either one grows too strong we might be in trouble."[iii]

The article than zoomed forward to the post-New Deal era, where we have seen an enormous expansion of presidential power, sometimes from congressional delegations of power but other times without clear constitutional or statutory authorization. Some of these presidential power-grabs are increases in foreign affairs or war power (e.g., attacking foreign nations without congressional authorization[iv]), while others are exercises of domestic policymaking without congressional approval, for example, dismantling a cabinet department, which one would think needs a statutory basis.[v] In part to provoke discussion, I referred to such domestic policymaking actions – which seem to have the force of law – as lawmaking. Understanding modern presidential power assertions in this way helps us see how far things have come since 1787.

I then examined several ways in which we might bring the Congress-President relationship back into the kind of balance the framers envisioned. One angle was to support congressionally created independent agencies, where the heads may not be fired by the President except for good cause. But in the intervening 30 years, the Supreme Court has increasingly (and incorrectly)[vi] cut back on Congress' power to create such agencies, asserting that they improperly take executive power from the President.[vii] Another angle was to argue for congressional power to act through bicameralism (i.e., majority support in both houses of Congress) but not presentment (i.e., without need to present a Bill to the President for his approval and signature), in situations where the House and Senate deem a presidentially supported regulation beyond the scope of statutory delegation.[viii] This would involve overruling INS v. Chadha,[ix] which nixed such a "legislative veto"[x] for not following proper Article I, section 7 process,[xi] and although I still support this move as a proper translation of how the framers would have wanted balanced power in today's world, I recognize that the U.S. Supreme Court is unlikely to overrule Chadha.[xii] Read More

A very interesting piece by Prof. Thomas Balazs in Quillette. An excerpt:

When ChatGPT can analyse Hamlet as well as any grad student, we might reasonably ask, "What is the point of writing papers on Hamlet?" Literary analysis, after all, is not like building houses, feeding people, or practising medicine. Even compared to its sister disciplines in the humanities (e.g., history or philosophy) the study of literature serves little practical need. And, besides, when machines can build houses as easily as people, we won't need people to build houses either.

So, why do we teach English literature (or "language arts," as some secondary schools now call it) at all? According to the nineteenth-century British literary critic Mathew Arnold, the purpose of studying and teaching literature is "to know the best that is known and thought in the world, and by in its turn making this known, to create a current of true and fresh ideas." … English literature was, in truth, a substitute for religion. We wanted people to be good, but we no longer believed in God. Instead, we believed in Shakespeare, Milton, and eventually Toni Morrison. Until we didn't.

It's always been problematic, though, this idea that literature makes you a better person. Besides the obvious counterfactuals—the allied soldiers allegedly found copies of Johann Wolfgang von Goethe's works in the desk drawers of Nazi prison guards when they liberated the camps—there were the problems that always arise when you try to push your religion on other people.

Our religion was literature, and like any people of true faith, we deeply believed in it, thought it was essential, thought everyone must be saved through it. The remarkable thing was that we somehow convinced American college presidents of the idea, but then again, many of them, like University of Chicago president Robert Hutchins, creator of the "Common Core" and advocate of "Great Books," were members of the same religion. Not all countries make students of mathematics and engineering take literature courses, but in the United States we do. So for nearly a century, we evangelised our religion to college students, some of whom were already in love with reading and therefore happy to worship at the Temple of Literature. Many were not, but, nonetheless, we rammed Shakespeare, Herman Melville, and Toni Morrison down their throats—to make them better people.

That doesn't mean that it necessarily stayed with them…. Some students of the right temperament and with the right intellectual predilections are drawn to the Temple of Literature, but most are not. For most, it is like going to Sunday school—they endure it reluctantly and quickly forget any lessons learned.

But that's just an excerpt; here's the whole thing.

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5/31/1860: Justice Peter Daniel's death.

A very interesting item in the Executive Functions substack newsletter, written by a leading expert on Presidential power:

On Wednesday, the U.S. Court of International Trade (CIT) ruled that the International Emergency Economic Powers Act (IEEPA) did not authorize President Trump's sprawling tariff policies and permanently enjoined them. On Thursday a federal district court in the District of Columbia reached the same conclusion about IEEPA for different reasons, and issued a preliminary injunction.

Before these rulings, I disagreed with most of the commentary on Trump's IEEPA sanctions and thought that the legal issues here were hard and close. Neither ruling convinced me otherwise. In what follows I explain why, though I must be necessarily selective in addressing complicated opinions chock full of technical arguments.

As I explain in the end, I think the lawfulness of Trump's IEEPA tariffs depends a lot on the proper application of the major questions doctrine (MQD) that both the CIT and the district court under-examined. Indeed, I think the major questions doctrine will be the central issue before the Supreme Court when these cases reach it. A reader in a hurry might skip the long intervening statutory interpretation technicalities and go directly to the more interesting and to my mind consequential analysis of the MQD's relevance at the end of this piece.

The Case for Trump's Tariffs Under IEEPA

IEEPA grants the president a number of emergency authorities, one of which is the authority to "regulate … importation … of … any property in which any foreign country or a national thereof has any interest by any person." It further provides that the president may exercise this authority "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." …

Much worth reading in its entirety.

Tariffs Separation of Powers

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Politics

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From Thursday's decision in Spencer v. State, written by Justice Courtney Hudson and joined by Justices Rhonda Wood, Shawn Womack, Cody Hiland, and Nicholas Bronni:

On November 27, 2024, Spencer was charged by felony information with second-degree murder … for the shooting death of sixty-seven-year-old Michael Fosler…. The circumstances of the shooting were as follows. In July 2024, Fosler had been charged with numerous sexual offenses against Spencer's teenage daughter, and he was released on bond. On the night of the shooting, Spencer awoke to his dog barking and realized that his daughter was gone. Spencer found a "hoodie" on a stuffed animal placed in her bed. As a result, he left in his truck to search for her. Spencer located Fosler's truck—with his daughter inside—and he forced Fosler's truck off the highway. After an altercation, Spencer called 911 to report that he had shot Fosler. Fosler died at the scene.

On December 4, 2024, the State filed a motion for gag order alleging that Spencer's arrest had garnered media coverage throughout the state and the nation. Attached to the motion was a press release from Spencer's attorneys, Erin Cassinelli and Michael Kaiser, criticizing the decision to charge Spencer criminally as "targeting [a] heroic father." The State also pointed to a television interview in which defense counsel allegedly stated that they felt confident that the community would side with Spencer "because every one of them would have done the same thing for their child or their neighbor's child or member of their family." The State argued that a gag order was necessary to preserve the integrity of the jury pool and to ensure the right of a fair trial for both the State and the defendant.

The trial court ordered:

It is the Order of this Court that no party to this action, nor any attorney or agency connected with this case, directly or indirectly, nor any judicial employee or officer of this Court, nor any public official now holding office, including but not limited to law enforcement officials, nor any agent, deputy or employee of any such persons, nor any person subpoenaed to testify at the trial of the case[,] [n]either shall the defendant nor his family shall do any of the following:

Free Speech Right of Access

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Do lower court judges time their decisions to take senior status or retire, and thus create a vacancy for a President to fill, based upon who they think might replace them? It is an interesting (and timely) question--and one that can be informed by more than anecdote and intuition.

Back in 1995, James F. Spriggs, II and Paul J. Wahlbeck published a paper looking at lower court retirement decisions between 1893 and 1991, "Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991." Perhaps unsurprisingly, they found that retirement rates increased significantly among judges appointed by a President of the same party as the current occupant of the White House. Other studies, including "Judges as Party Animals: Retirement Timing by Federal Judges and Party Control of Judicial Appointments" by Ross M. Stolzenberg and James Lindgren have reached similar conclusions.

More recently, John Deschler and Maya Sen looked at whether ideology, distinct from partisan affiliation, influences judges' decisions to leave active status. Their paper, "The Role of Judge Ideology in Strategic Retirements in U.S. Federal Courts," published last year, suggests it does. Here's the abstract:

The widely recognized phenomenon of federal judges retiring strategically has key implications for the composition of the judiciary, particularly given polarization between the two U.S. political parties. Using fine-grained measures of judicial ideology, we examine how ideology shapes such strategic retirements. First, we show that since Reagan's election, Democratic appointees to lower federal courts have been more likely to retire strategically than Republican ones. Second, we find that more ideologically conservative Republican appointees are more likely to strategically retire than are moderate Republican appointees but only suggestive evidence of a similar pattern among more liberal Democratic appointees. Third, as explanation, we find that moderate Republican appointees appear to "wait out" retiring strategically under more conservative recent presidents, such as Donald Trump, opting instead to retire under Democrats such as Joe Biden. Taken together, our results offer a key insight: ideology, and not just party, can be an important factor in driving strategic retirement.

Setting aside whether Trump should be characterized as more "conservative" than other Republican presidents, and whether the Trump effect found here is properly characterized as a function of "ideology," the study does seem to find a Trump effect on judges' decisions to create vacancies.

Why might this matter? One reason it might matter is that judges who are wavering may be more likely to retire if they fell more confident in the sort of nominee who would replace them. At this moment there are 22 circuit court judges who were appointed by Republican Presidents who are eligible for senior status but have not yet announced any intention to step down, as well as 42 district court judges.

This suggests that if the White House wants to maximize the administration's influence on the judiciary, it should seek to appoint the sort of judges that are likely to instill confidence in judges who are eligible to take senior status, particularly in the beginning. (In other words, it should seek to nominate judges of the caliber that it nominated during the first term.) And if it fails to do so, it may discover that it ends up with fewer vacancies to fill.

Trump's first judicial appointment of the second term would seem to fit the bill here. The second appellate nomination, Emil Bove, has been more polarizing. So the jury is out on whether Trump's judicial nominations will, on the margin, encourage more sitting judges to create vacancies for President Trump to fill.

I had the honor of clerking for Judge Kim R. Gibson in the Western District of Pennsylvania from 2009-2011. This was the most formative experience of my career. In that brief time, I learned so much about the law, being a lawyer, and life. Judge Gibson passed away today at the age of 77. My co-clerk Adele and I were fortunate enough to visit the Judge a few weeks ago, and it was a moment I will always treasure.

The Western District of Pennsylvania shared this obituary of Judge Gibson, which I am happy to pass on:

Judge Kim Gibson has passed away in Somerset, PA. Kim had turned 77 yesterday.

Kim devoted his entire adult life to serving his country and his neighbors. Born in Trenton, NJ, Kim entered the United States Military Academy at West Point in 1966, graduating with his Bachelor of Science degree in 1970. Upon being commissioned a Second Lieutenant in the United States Army, Kim took one of the hardest paths possible, completing both Airborne and Ranger training before serving as an Armor Officer, on active duty in that assignment until 1975. Kim's service in the Army on active and Reserve duty extended for 26 years, and he retired as a Colonel in the Judge Advocate General Corps in 1996.

Kim attended the Dickinson School of Law, graduating magna cum laude in 1975, where he served as an editor of the Dickinson Law Review. He was a graduate of the Judge Advocate General School at the University of Virginia, and remained on active duty in the Army JAG Corps until 1978. He was recalled to active duty during Operation Desert Storm in 1991.

While Kim was in solo practice in Somerset PA, he served as the Public Defender, as the Solicitor for the Somerset School District, as counsel to the Office of Children and Youth Services and as the Solicitor for Somerset County. In 1997, he was elected by the voters of Somerset County to the Court of Common Pleas, serving in that role until joining the federal bench in September, 2003. While a state court judge, Kim established a Juvenile Drug Court, one of the first in the Commonwealth. Kim came to our Court upon his nomination by President George W. Bush, and served as a District Judge beginning in 2003. He moved to senior status in 2016, but that shift was more theoretical than actual, as he continued to handle a full and active case load until his final illness. While a Judge of our Court, Kim was called upon by Chief Justice John G. Roberts, Jr. to serve as a member of the Judicial Conference's Court Administration and Case Management Committee, the committee that sits at the crossroads of all of the work of the federal courts. Kim was an Adjunct Professor of Law at the Penn State Dickinson School of Law, and a member of its Board of Counselors. As a leader of the bench and Bar, Kim was a valued mentor to many, especially to our own Judges Stephanie Haines and Chris Brown, and to the scores of young people he coached in Little Leagues Baseball.

Kim's service to the Nation extended even beyond his first career in the Armed Forces and then his second as a practicing lawyer representing the public's interests, and then his third career on the bench. Kim was called to serve as the co-chair of the Flight 93 Memorial Task Force, a commission established by an Act of Congress, on which he was responsible for leading a diverse group of family members, public officials, community leaders and others in developing and the constructing the Memorial and national park site that commemorate the bravery and patriotism of the passengers and crew of United Flight 93 on September 11, 2001 as they brought down that airliner near Shanksville, PA before its hijackers could reach their intended target in the Nation's Capital, thereby saving innumerable lives. The Flight 93 Memorial will be yet another perpetual testament to Kim's life of service to all of the rest of us.

Each of us will have our own favorite and most cherished memory of Kim. His life and career were marked with service and thoughtfulness, always. His mentorship extended to his dozens of law clerks, almost all having the opportunity to work with Kim for a single year, right from law school, as he felt so strongly about providing those opportunities to as many law students as he could. His courtesy to lawyers and especially litigants and the public set the standard for any judge, and his gentle chuckle and good cheer, coupled with his constant courtesy and consideration for others were his hallmarks. We in the Court, his neighbors in Somerset County, his friends and colleagues across the country, and the public that he served with unwavering dedication, will miss him dearly.

On May 30, 2017, exactly eight years ago today, Judge Gibson held a ceremony when he took senior status. This was a special day for the judge, as many of his former law clerks attended. I recorded his remarks, and took some photos.

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

Call for papers: Scholars, next year IJ's Center for Judicial Engagement is going to celebrate and confer upon "The Other Declarations of 1776." Accordingly, we invite papers on the history, meaning, and impact of state declarations of rights from 1776. It's going to be a blast. Please send us proposals. Click here for more.

Recently, Prof. Samuel Bray opined that it would be "folly" to incorporate the Seventh Amendment's civil-jury right against the states—an argument occasioned by IJ's latest cert petition. As you might expect, we politely disagree. IJ's own Jared McClain, one of the petition's authors, has therefore penned a neutron bomb of a response.

Check out the latest episode of Unpublished Opinions, IJ's roundtable podcast. Wherein Patrick Jaicomo reflects on his recent SCOTUS argument and Anya Bidwell can't get enough of Fanny Burney.

Four days after Media Matters published an article reporting that Elon Musk endorsed an antisemitic conspiracy theory while Twitter was placing corporate ads next to pro-Nazi content, the Texas AG launched an investigation into Media Matters for potential deceptive trade practices and issued a sweeping demand requiring the group to produce a slew of records. MM sues in DC, alleging 1A retaliation. AG: You can't sue me there, or for that, and even if you could, you lose. D.C. Circuit: Not only is the suit proper, but also the PI barring enforcement of document production is completely appropriate.
Does the Controlled Substances Act violate the Commerce Clause as applied to purely intrastate cultivation, manufacture, possession, and distribution of marijuana pursuant to state law? First Circuit: The Supreme Court said "no" back in 2005, and "no" is still the answer. The fact that Congress has since made use of appropriations riders preventing the DOJ from using any funds to prosecute state-legal marijuana doesn't change the analysis. And the law is fine under the Due Process Clause as well, despite the plaintiffs' thorough canvassing of marijuana's historical pedigree. Read More

Yesterday, I mused on whether the President may ignore geographic constraints when selecting circuit court nominees. The impetus behind that post, of course, was Emil Bove's nomination to Justice Alito's old seat on the Third Circuit, even though Bove has no clear geographic connection to New Jersey. At the end of my post, I offered some praise of Bove, at least based on my interaction with him during the Special Counsel litigation.

Yet, there is strong opposition to Bove on the right. On May 19, Ed Whelan described Bove as a "DOJ Henchman." Whelan closed with an admonition: "Picking Bove would send the opposite message, and it might well deter some sitting judges from stepping down from active service to create more vacancies that Trump could fill." Whelan's subtle message was that Trump should pick someone else, or else he will get fewer vacancies. This statement was as much predictive as it was suggestive--he was signaling to the Bush I and II judges they should not give up their seats to Trump. Jon Adler expressed a similar message on X, saying that fewer judges may take senior status if the "caliber" of Trump's nominees are weaker.

Whether the White House wants to acknowledge it or not, the caliber of its early judicial nominations will affect the number of vacancies it gets to fill. This is why the Bove nomination was a risky pick (even apart from the merits). https://t.co/HV6uD7gsf9

— Jonathan H. Adler (@jadler1969) May 29, 2025

On the other hand, Mike Fragoso--who is now Whelan's colleague at EPPC--suggests that many of the Republican judges who are eligible are refusing to take senior status, independent of Bove. I tend to agree with Fragoso. Judges have very idiosyncratic views on taking senior status. Maybe at the margins, someone interested in stepping down will not, but I am skeptical.

By my count there are 21 senior-eligible Republican court of appeals judges. Do I wish more of them would go senior? Of course. But I've wanted that for a while: 17 of the 21 were eligible in 2020. These judges themselves are the reason they won't go senior, not Emil Bove.

— Mike Fragoso (@mike_frags) May 30, 2025

Perhaps during a prior time, Whelan's post would have been enough to stop the nomination. But here, Whelan's post seems not to have had any effect on Trump's decision making. Indeed, senior officials in DOJ rejected Whelan's argument.

With Bove nominated, Whelan has now leveled up the discourse with a lengthy post critical of Bove. It reads like the sort of commentary that Whelan has provided about countless Democratic nominees. At the end, Whelan concludes "Republican senators who have the foresight and sense to prevent this scenario should defeat Bove's nomination." Again, this sentence is as much predictive as suggestive: he is telling Republican senators to block Bove's nomination as part of a line of defense against Trump picking future similar nominees. I have no idea how influential Whelan's post will be with Republican Senators, given that Trump has lined up solidly behind Bove.

Further, we can't separate these issues from President Trump's post last night that criticized the Federalist Society, and Leonard Leo in particular, for their advice on judicial nominees in during the first administration. And on the horizon is the specter that the three Trump Justices will soon have to resolve the legality of the tariff plan, which is the centerpiece of the President's entire economic agenda. The Gold Clause Cases comes to mind as an analogy. Let's see what kind of blue plate special the Chief tries to whip up.

As I've written before, there is a storm brewing that most people--inside and outside the judiciary--do not quite yet see. People might think they are pumping the brakes, when in fact they are slamming their feet on the accelerator. They think they are dousing the flames with water, when if fact they are spraying kerosene. They think they are averting crisis, when in fact they are driving towards it.

In the past, the most vigorous clashes over judges happened between the left and the right. I think the next round of wars will be on the right. The left can sit back and enjoy the fireworks.

Update: I thought of another analogy. A generation ago, a President nominated his lawyer to a federal judgeship. Conservatives screamed that this nominee was utterly unqualified for the person. The President flinched, withdrew the nominee, and appointed someone that was more palatable. That playbook may have worked in 2005, but it will not work in 2025. I can tell that Emile Bove is not Harriet Miers, and Donald Trump is not George W. Bush.

Today, in Noem v. Doe, the Supreme Court granted the Trump Administration's application for a stay of a district court order that barred the Department of Homeland Security from revoking "parole" status for an estimated 500,000 noncitizens from Cuba, Haiti, Nicaragua, and Venezuela under the so-called "CHNV" program. Justice Jackson dissented, joined by Justice Sotomayor.

The Court's order in Noem v. Doe should not be surprising. As even Justice Jackson acknowledged in her dissent, the decision to offer noncitizens parole "is discretionary by statute."

The language of 8 U.S.C. §1182(d)(2)(A) is quite clear:

The Secretary of Homeland Security may, . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

While it is certainly disruptive to revoke a noncitizen's parole status, it is something the Secretary clearly has the power to do. Unlike in the Alien Enemies Act cases, there is little question about the scope of the Administration's authority or the way it is being exercised. Further it is not clear that such discretionary choices are even subject to judicial review.

Justice Jackson objected to the stay on the grounds that granting a stay should reflect "more--much more" than the likelihood that one party will prevail. While leaving hte district court's injunction in place would prevent the DHS Secretary from exercising her discretion, and inhibit the administration's ability to pursue its immigration and foreign-policy objectives through power expressly delegated by Congress, she believes the Court should have shown greater solicitude for the effects of revoking parole on the program's beneficiaries. "Even if the Government is likely to win on the merits, in our legal system, success takes time and the stay standards require more than anticipated victory." Yet under this approach, one administration could effectively tie the hands of its successor by granting parole or other status to large groups of noncitizens, without regard for what Congress enacted. Immigration law is not, and should not be, this sort of one-way ratchet.

Today's order is a reminder that the President retains ample authority to direct immigration policy and undo the policies of his predecessors. All that is necessary is exercising those authorities forthrightly. (And if one does not like that a single President can exercise authority in this way, that is a question to take to Congress.)

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]

"[T]hough the perceived defects of [television] are many … they can be more or less subsumed in two words: vast wasteland." Newton Minow, then chairman of the FCC, coined this pejorative in 1961, and it has (justly) stuck.

But if your local bookstore let you buy, at any given hour, only five books—each chosen for maximum appeal to 250 million people—you'd think of publishing as a vast wasteland, too. This would be true even if the store had fifty books, or maybe even 500 books to match the touted 500-channel cable system of the future. There'd be a greater chance that you'd get what you want, but still you'd often be dissatisfied.

The problem with TV isn't lack of material. Plenty of excellent television has been created in the medium's almost fifty years. Add to that the many great movies that have been made, and there's enough for each of us to watch for hours every day and still only get the stuff we enjoy.

The problem is that broadcasting can't get you what you want when you want it. It can only get you what millions of people prefer, and it can only give it to you at the time chosen by the broadcaster, not the time chosen by you. Five hundred channels may help, because they may make room for material that appeals to only, say, a few hundred thousand people; but that will still be inadequate.

What people would like, I believe, is to choose from home—at any time convenient to them—any TV show or movie they want, just as they choose a book in a bookstore, only more conveniently and less expensively (or even free, since the medium might still be advertiser-supported). Some people might still want someone else to decide; they might, for instance, ask for a random comedy, or a random comedy praised by a given reviewer. They might even ask for the latest episode of a particular new show, just as they do on TV today, though at a time that's convenient for them. But they'll be the ones who choose, or choose to leave the choice to someone else.

Free Speech

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The Cyberlaw Podcast is back from hiatus – briefly! I've used the hiatus well, skiing the Canadian Ski Marathon, trekking through Patagonia, and having a heart valve repaired (all good now!). So when I saw (and disagreed with ) Orin Kerr's new book, I figured it was time for episode 502 of the Cyberlaw Podcast. Orin and I spend the episode digging into his book, The Digital Fourth Amendment: Privacy and Policing in Our Online World.

The book is part theory, part casebook, part policy roadmap—and somehow still manages to be readable, even for non-lawyers. Orin's goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere.

The core notion of the book is "equilibrium adjustment"—the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It's very persuasive, I say, if you ignore Congress's contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts'.

One example is preservation orders—those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that's a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress's work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded.

We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does—and doesn't—mean for the third-party doctrine. Orin's take is refreshingly narrow: Carpenter didn't blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary's Vietnam war – it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin's version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years.

Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.)

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it:

Two courts now have ruled that President Trump did not have authority to impose new tariffs on foreign imports under the International Economic Emergency Powers Act of 1977 (IEEPA). The government has already announced an appeal. The Federal Circuit granted an administrative stay and ordered briefing by June 9. The tariff litigation is shaping up as the biggest separation of powers controversy since Steel Seizure.

A few comments (with the caveat that I was co-author and signatory on an amicus brief in support of the challengers):

[1.] The two courts both concluded that the President has no power under IEEPA to impose tariffs in response to balance of trade problems, and one court ruled, additionally, that President Trump lacked power to imposed tariffs in response to fentanyl trafficking. (For the remainder of this post I will discuss only the former holding.) It is important to stress that the decisions were not based on any criticism of the President's reasons for imposing the tariffs, but went to the existence of a power to do so.

The Court of International Trade (CIT) emphasized the relation between IEEPA and the Trade Act of 1974, holding that the specific procedures and substantive limitations contained in the latter supersede any more general emergency authority under the former. The District Court for the District of Columbia (Judge Contreras) emphasized that IEEPA's delegation of power to "regulate" imports does not include a power to tax imports. The two lines of argument are entirely compatible, but not identical.

The courts differed as to which court has jurisdiction. Both arguments are reasonable, though both cannot be correct. This does not matter for resolution of this controversy, however, because the two courts came to the same conclusion on the merits. Both cases are headed for the Supreme Court. Regardless of which trial court had jurisdiction, the Supreme Court will make the final decision.

[2.] Based on the arguments as they now stand, there is a high probability the decisions will be affirmed, in my opinion. There are no jurisdictional or procedural obstacles to a decision on the merits, as have plagued some of the Trump executive order cases. In its application to the Federal Circuit for a stay, Justice Department lawyers claimed that the CIT decision is "rife with legal errors," but has not said what they are. Perhaps the government will come up with persuasive arguments in its briefs in the Federal Circuit on June 9. As of now, however, the essential points in the courts' analysis are largely unrefuted. IEEPA grants various emergency economic powers, but makes no mention of tariffs, and has never before been used to impose tariffs. Interpreting it as a broad power to impose tariffs whenever the President declares an "emergency" would implicitly repeal the several statutes in which Congress did grant tariff authority, subject to procedural, substantive, and temporal limits not satisfied here.

Tariffs Separation of Powers

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The Atlantic has just published my new article about our win in the tariff case before the US Court of International Trade. It is entitled "A Victory for the Separation of Powers." Here is an excerpt:

Wednesday's unanimous ruling against President Donald Trump's expansive "Liberation Day" tariffs by the United States Court of International Trade wasn't merely a victory for the businesses and consumers opposed to the policy. The decision was much more than that: a victory for the constitutional system of separation of powers—and, even more broadly, for the rule of law in America.

The decision came in a case filed by the Liberty Justice Center and me on behalf of five American businesses harmed by the tariffs, and it also covers a similar case filed by 12 states led by Oregon. Our suit challenged Trump's attempted use of the International Emergency Economic Powers Act of 1977 to impose 10 percent Liberation Day tariffs on imports from almost every nation in the world, plus additional "reciprocal" tariffs on many more countries. We argue that the IEEPA doesn't grant Trump the virtually unlimited tariff authority he claims, and that, if it did, it would be unconstitutional. Earlier, the president also used IEEPA to impose 25 percent tariffs on Canada and Mexico, plus additional tariffs on China, under the pretext that they would somehow curtail importation of fentanyl into the United States. (Our case challenged only the Liberation Day tariffs, while the Oregon case also targeted the fentanyl ones.) In combination, the IEEPA tariffs kicked off the biggest trade war since the Great Depression. The Tax Foundation estimated that Trump's IEEPA tariffs would have imposed some $1.4 trillion to $2.2 trillion in tax increases on Americans over the next decade. They also would have severely slowed economic growth, inflicted grave harm on many businesses—including our clients, who depend on imports—and raised prices on consumers.

Fortunately, the court ruled that Trump does not have the "unbounded authority" he claims "to impose unlimited tariffs on goods from nearly every country." The British overthrew King Charles I in part because he tried to impose "ship money" taxes without legislative authorization. The president of the United States is no king, and he does not have the power to impose taxes in the form of tariffs whenever he feels like it. The court's decision upholds this fundamental principle of the Anglo-American constitutional tradition.

The article addresses a variety of issues raised by the decision, the potential future course of this litigation, and yesterday's separate ruling against the tariffs by federal district court Judge Rudolph Contreras of the District of DC.

Since our win in the tariff case before the US Court of International Trade a couple days ago, there have been several informative media articles about the history of the case, and how the Liberty Justice Center and I decided to undertake it, and found our clients. In this post, I compile links to what I think are the most interesting ones.

Ruth Simon and James Fanelli of the Wall Street Journal have an article entitled "How a Small Wine Importer Took On Trump's Tariffs" (paywalled) It tells the story of our lead plaintiff Victor Schwartz of VOS Selections. Also, it describes how the idea for the lawsuit originated with a post right here on the Volokh Conspiracy blog, which led Jeff Schwab of the Liberty Justice Center to reach out to me in hopes of pursuing the issue. We eventually agreed I would put up another post seeking potential clients for the case, which is how we found Victor and other potential clients. As the article describes we deliberately sought small businesses that directly import products from countries subject to the "Liberation Day" tariffs.

Mark Gollom tells the same story in a bit less detail in an article for the Canadian CBC news site. Unlike the Wall Street Journal article, this one isn't paywalled!

Finally, Callum Sutherland of Time has an article profiling all five of our clients: VOS Selections, FishUSA, Microkits, Terry Precision Cycling, and Genova Pipe. Between them, they represent a a wide range of industries, from toys to wine to cycling apparel for women; a veritable cross-section of the many small businesses imperiled by Trump's trade war. We are proud to represent them!

Over the last two days, since our victory in the tariff case before the US Court of International Trade, I have done more media interviews than in any other comparable period in my entire life. That's not because I've become a celebrity or a great media personality (I'm not), but because of the significance of the issue. Because of the enormous magnitude of Trump's trade war, it affects people all over the world. In this post, I include links to a few of the more informative interviews.

First, a podcast with Greg Sargent of the New Republic, where we discuss the case and the likely path ahead in some detail. It is about twenty minutes long.

Here's a five minute TV interview on CNN, where I discuss the ruling and its significance:

Next is an interview I did with ABC Australia's "Planet America" program. The segment with me runs from about 6:45 to 13:40 (a little under seven minutes). This was done just a few hours after the ruling was announced.

And, finally, a shorter segment from the Canadian TV network CTV:

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