A lot can happen in five years. June 2020, or Blue June as I called it, was one of the most depressing periods in recent Supreme Court history. After Justice Kennedy retired, Chief Justice Roberts became the new swing vote, and swung to the left in nearly every case. Perhaps the most confounding decision was Bostock. Justice Gorsuch, joined by Chief Justice Roberts, ruled that the Civil Rights Act of 1964 all along prohibited discrimination against gays, lesbians, and transgender people.
The decision was profoundlywrong. Yet, I think Bostock can be understood, at least in part, as a reflection of the zeitgeist. June 2020 was close to peak woke. The pandemic combined with #MeToo and the George Floyd "racial reckoning" created a perform storm for progressivism. All of the trend lines seemed to be moving towards the acceptance of what is often described as transgender ideology--the argument that biological sex and gender identity were distinct, and that irreversible medical treatment should be provided to minors to conform biological sex sex to gender identity.
But over the past five years, those trend lines reversed. This reversal was due, in part, to new medical information about how puberty blockers and cross-sex hormones affect minors. It was also due to revelations that public schools were secretly transitioning children without their parents' consent. And perhaps most critically, people became no longer afraid to criticize the orthodoxy. The left's most powerful tool was censorship--on social media in particular. But boycotts against Target and Bud Light, as well as demonstrations about biological males competing in female sports, shifted the Overton Window on what could be discussed. (I worry that Justice Barrett would see these movements as "animus.")
Supporting these shifts were state legislatures that passed laws restricting providing medical treatment to minors, and barring transgender athletes from sports. Were these laws clearly constitutional under United States v. Virginia? I'll just say that Justice Sotomayor's dissent was more persuasive than I expected. Were these laws consistent with the "because of" analysis under Bostock? Again, I think the dissent made the case more persuasively than I expected. Chief Justice Roberts gave us yet another Houdini opinion: focus on the exceptions for the medical treatment, and ignore the necessary role that biological sex plays in the regime. The man is a master of misdirection. Don't be fooled. I think the Sixth Circuit and Justice Alito got it right.
So what changed between 2020 and 2025? In particular, what can explain the votes of Chief Justice Roberts and Justice Gorsuch. In fairness, I'm not sure the Chief ever fully bought Gorsuch's position. As the sixth member, he had a free vote, and he could cast it to help create the appearance of bipartisanship. I would like to give Roberts the benefit of the doubt, but he surrendered the presumption of regularity after NFIB.
What about Justice Gorsuch? It is difficult to describe how much anger Gorsuch received within conservative circles for Bostock. That decision gave Adrien Vermeule the perfect opportunity to advance common good constitutionalism. Bostock also opened a window for the James Wilson Institute to promote the study of natural law. For many people (not me) Bostock was the first hint that something was wrong with the Trump appointees. At a Federalist Society Convention, Gorsuch joked that he doesn't care what we think about his decisions. But that isn't true. One doesn't become a Supreme Court justice unless one deeply cares what members of his community think. Noscitur a sociis. Judge a judge by the company he keeps.
I remain convinced that the full court press placed on the conservative Justices helped grease the skids for Dobbs. And I think that pressure had an effect on Justice Gorsuch as well.
For example, during oral argument in Skrmetti, Justice Gorsuch did not say a word. He did not open his mouth once. Even as the word "Bostock" was uttered more than twenty times, Gorsuch said nothing. He gave the Wall Street Journal editorial page nothing to scrutinize.
What about during the opinion hand down? Mark Walsh offered this account:
As she discusses her view that the majority is trying to distinguish "away" Bostock v. Clayton County, the 2020 decision that said Title VII covered sexual orientation and gender identity in employment, Justice Neil Gorsuch, the author of Bostock but a member of today's majority, turns just to his left and looks at her intently, with his hand to his head.
The sound of silence.
(I am grateful that SCOTUSBlog-Dispatch is re-investing in this valuable feature.)
In Skrmetti, Roberts and Gorsuch walked back Bostock. That much is clear. Will it be overruled? Justice Alito said he would sail under that pirate flag as a matter of statutory stare decisis.
I dissented in Bostock, but I accept the decision as a precedent that is entitled to the staunch protection we give statutory interpretation decisions
But it will not be extended a single league further.
Per the Complaint, Daybreak owns the intellectual property to EverQuest, including trademarks and copyrights associated with the EverQuest franchise. EverQuest is a "massively multiplayer online role-playing game" that has achieved a measure of commercial success. Daybreak alleges that Defendants Kristopher Takahashi and Alexander Taylor, as well as yet to be identified Defendants Does 1-20, collaborate to "create, develop, distribute, and promote an unauthorized and illegal EverQuest emulator called 'The Heroes' Journey'" ("THJ"). Defendants Takahashi and Taylor are the respective lead producer and developer of THJ and play primary roles in promoting it through interviews and communications in online forums such as Discord. By operating the emulator, Daybreak alleges that Defendants engage in "systematic and deliberate copyright and trademark infringement." …
The court denied Daybreak's attempt to seal the case:
Daybreak moves to temporarily seal this case in its entirety, asserting that sealing is necessary "to prevent Defendants from learning of the proceedings prior to the service of and execution of any temporary restraining order." Accordingly, Daybreak requests that the Court seal the Complaint, the TRO Application, the Ex Parte Motion for Leave to Exceed Page Limits, and the Motion to Seal.
While legal scholarship on firearms has grown tremendously since I first started writing on the issue in the late 1980s, one topic that has never been addressed in detail in any law journal is machine guns. My new article in the Wyoming Law Review, Machine Gun History and Bibliography, aims to fill the gap.
The article appears in a symposium issue of the Wyoming Law Review, based on papers presented at a 2024 conference held by the law school's Firearms Research Center, where I am a senior fellow. This was the first law school symposium ever on the National Firearms Act of 1934, one of the two foundational federal gun control statutes.
Of the five other articles in the symposium issue, one of my favorites is The Tradition of Short-Barreled Rifle Use and Regulation in America, by Joseph G.S. Greenlee. While this is not the first article about NFA regulation of short-barreled rifles (SBRs), it is the first to examine in depth the history of SBRs, which before the 1934 NFA imposed a $200 tax on them, were quite common. And they're common today too; as of May 2024, there were 870,286 registered in the National Firearms Registration and Transfer Record, which is maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. (ATF, Firearms Commerce in the United States, Statistical Update 2024, p. 12.)
My other favorite in the symposium is Stephen Halbrook's The Power to Tax, The Second Amendment, and the Search for Which "Gangster' Weapons" to Tax. In brief, the NFA bill as introduced also included handguns, but they were removed from the bill at the insistence of the National Rifle Association and the National Guard Association, which at the time were very closely allied. The inclusion of SBRs and short-barreled shotguns (SBSs) was simply an effort to prevent evasion of the draft restrictions on handguns. Once handguns were deleted from the NFA bill, there was no longer any reason for the bill to include SBRs or SBSs. No testimony or congressional statement claimed that either of these firearms types were a particular crime problem.
My own article, on machine guns, does not delve into legislative history, nor does it make any arguments pro or con about special laws for machine guns. Rather, the articles aims to be useful to courts, lawyers, and scholars in two ways: First, the article explains the statutes, regulations, and other important legal texts for American machine gun law. Second the article provides a history of the development of machine guns and their impact on warfare, including a comprehensive bibliography of books for each machine gun type. The Article begins with the 1862 Gatling gun and continues through the present.
Here is the abstract:
This Article provides an introductory history of machine guns and books about them. First, the Article describes federal machine gun laws and regulations, and related legal resources. Then the Article presents the historical development of machine guns from 1862 to the present, covering the various types of machine guns: heavy, medium, light, general purpose, submachine gun, machine pistol, and assault rifle.
The first machine gun to achieve broad commercial success was the Gatling gun, invented during the American Civil War. Although the Gatling had little effect on that war, shortly thereafter the Gatling gun and other manual machine guns started to change warfare. Later, heavy machine guns such as the automatic Maxim gun, and its successor, the Vickers gun, dominated battlefields. Towards the end of World War I, the heavy machine gun was dethroned from its supremacy by the widespread adoption of new, portable light machine guns, which could be used to suppress an enemy machine gun nest while other troops advanced.
In the subsequent two decades, especially during World War II, machine guns that were easily portable by a single soldier became much more common, such as the Thompson submachine gun widely used by American and British forces. During the Cold War, the assault rifle, no bigger than an ordinary rifle, became increasingly important. Most influential, almost always for ill, was the Soviet Union's AK-47 and its progeny. The American counterpart, the M16, proved much less effective in battle, at first due to technical problems, and everlastingly because of its puny bullet.
Improvements in metallurgy, manufacturing, and design have improved the quality of infantry machine guns. But a soldier with a machine gun on a battlefield in the third decade of the twenty-first century will likely be using a machine gun of a broad type that was already in widespread use by the 1950s.
Besides the machine guns named in the abstract, some of the other machine guns covered in the article include the Lewis Gun, the execrable French Chauchat, Browning Automatic Rifles, Browning Machine Guns, the Finnish Suomi, the British Bren Gun, Sten Guns, Grease Guns, the many German and Soviet innovations of WWII, plus Cold War and subsequent machine guns from companies such as Belgium's Fabrique Nationale and Germany's Heckler & Koch, the American M14 and others, and lastly the modern machine pistols from Uzi, MAC, and Heckler & Koch. The Article concentrates on infantry arms, with only passing attention to aircraft-mounted machine guns.
Finally, I would like to thank the staff of the Wyoming Law Review for an outstanding job on editing and cite-checking. With over 120 published journal articles, I have been through the cite-check process many times, and the Wyoming process was among the very best. Their rigor much improved the precision of the article, and the editors had a strong knowledge of firearms.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case: Officials in James Island, S.C. say they are using eminent domain to take IJ-client Kyle Taylor's property to build a park. But it's a ruse! The land is ill-suited to be a park; that's just something the town made up after caving to NIMBYs who don't want anything built. Indeed, Kyle's plans are fully compliant with the zoning, and he's spent years jumping through every hoop the planning commission threw at him. The taking is pretextual, which the Fifth Amendment forbids. Boo hiss.
New on the Bound By Oath podcast: The Fifth Amendment says that the gov't must pay just compensation when it takes private property, a command that, regrettably, is often treated as a mere suggestion. On this episode, we take a look at a variety of gambits and flim-flammeries that let the gov't take property without paying for it.
New on the Short Circuit podcast: IJ's school choice leader Michael Bindas discusses a qualified immunity case about a police shooting. (Which, believe us, is actually relevant to school choice.)
Independent journalist runs a YouTube channel, "Long Island Audit," where he posts his encounters with police. He's arrested for trying to record in an NYPD stationhouse lobby. District court: No preliminary injunction on his First Amendment claim, but supplemental state law claims are likely to succeed. Second Circuit: Perhaps, but the state statutes are kind of unclear and new. Certified question to the New York Court of Appeals!
Qualified immunity is the Veg-O-Matic of modern constitutional law—It slices! It dices! It kicks plaintiffs out of court!—but it doesn't, the Third Circuit reminds us, change the basic rule that a plaintiff's complaint need only contain a short, plain statement of facts, not allege enough facts to show a right was "clearly established." Read More
California National Guard members in Los Angeles. (Apex/Mega/DFBEV/Newscom)
Yesterday, the US Court of Appeals for the Ninth Circuit issued a decision overturning a trial court ruling that had invalidated President Trump's federalization of 4000 troops of the California National Guard. The Ninth Circuit gets several important issues right, but ends up getting the bottom line wrong.
Trump federalized the National Guard in response to protests and unrest caused by ICE deportation operations. The statute Trump relied on, 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:
1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States
All parties agree there is no "invasion" by a foreign power. District Court Judge Charles Breyer correctly ruled the very limited violence in LA was nowhere near the type or scale needed to qualify as a "rebellion," and also that mere impediments to law enforcement don't qualify as an "inability" to "execute the laws" with "regular forces." Otherwise, as I pointed out in my analysis of his ruling, an "inability" to enforce the laws would exist in virtually every city at any time, since there are always many lawbreakers whom "regular forces" are unable to detect and detain. Judge Breyer also ruled, correctly, that the determination about whether the prerequisites for invoking the statute exist is not a "political question" exempt from judicial review.
Interestingly, the per curiam Ninth Circuit ruling actually endorses much of the above. Like Judge Breyer, the appellate court rejects the administration's position that the criteria for invocation are a political question immune from judicial review. Indeed, the Ninth Circuit actually goes further than Breyer, concluding that the political questions doctrine doesn't apply to statutory issues at all, only certain constitutional ones. I am not sure this is correct, as a general matter. But I do agree that the president does not have unconstrained authority to invoke extraordinary emergency powers purely based on his say-so.
The Ninth Circuit does not address whether there is a "rebellion" in Los Angeles, basing their ruling purely on the supposed "inability" to execute federal law with "regular forces." On that score, they, much like Judge Breyer, recognize that this provision is only triggered by extreme situations:
[W]e do not think that any minimal interference with the execution of laws is, by itself, enough to justify invoking § 12406(3). The statutory context confirms that. Subsections one and two of the statute discuss unusual and extreme exigencies—invasions and rebellions—that threaten the normal operations of civil government. If we were to adopt the federal government's reading of subsection three, it would swallow subsections one and two, because any invasion or rebellion renders the President unable to exercise some federal laws.
As Judge Breyer explained in his detailed opinion, there was no such "unusual and extreme exigency" in LA on June 7. ICE and other federal law enforcement agencies continued to operate - including by detaining numerous supposedly illegal migrants - despite a few violent incidents in which no one was killed or even - apparently - seriously injured.
The Ninth Circuit also emphasizes that the courts can overturn invocations of the act made in "bad faith" for pretextual reasons.
The evidence the Ninth Circuit cites as justifying federalization seems skimpy, at best:
There is evidence that the day before, protesters threw objects at ICE vehicles trying to complete a law enforcement operation, "pinned down" several FPS officers defending federal property by throwing "concrete chunks, bottles of liquid, and other objects," and used "large rolling commercial dumpsters as a battering ram" in an attempt to breach the parking garage of a federal building. Plaintiffs' own submissions state that some protesters threw objects, including Molotov cocktails, and vandalized property. According to the declarations submitted by Defendants, those activities significantly impeded the ability of federal officers to execute the laws.
Such actions are reprehensible and should be prosecuted in court. But they fall far short of an "unusual and extreme exigency."As Elizabeth Goitein, a leading expert on presidential emergency powers and the domestic use of the military, points out, "[t]he [govenment's] declarations do not provide a single example of a case in which an attempted ICE raid was thwarted or a planned raid was canceled."
Moreover, allowing these kinds of low-level violence and impediments to law enforcement to justify invocation Section 10,246 violates the Ninth Circuit's own strictures against interpreting Subsection 10,246(3) so broadly as to "swallow subsections one and two." Virtually Any invasion or rebellion necessarily involves much greater violence than this, and much greater consequent interference with federal law enforcement. The only way to avoid the redundancy is to limit Subsection 3 to large-scale civil disorder that does not amount to a "rebellion" or "invasion," but does cause a major breakdown in law enforcement. By contrast, some invasions and rebellions, because of their short duration or limited geographic focus (e.g. - the enemy invades a very lightly populated area where there is relatively little crime), may create only modest obstacles to law enforcement, and those come under one of the first two subsections without triggering the third.
Why, then, does the Ninth Circuit rule in favor of Trump? Largely because they apply "a highly deferential standard of review" to presidential determinations here. The court admits that "the text of the statute does not make the President the sole judge of whether one or more of the statutory preconditions exist," and that "if we were considering the text of § 12406 alone, we might conclude that the President's determination is subject to review like certain other factual findings that are preconditions for executive action under a statute." They nonetheless opt for broad deference because "a line of cases beginning with Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), interpreting those delegations, strongly suggest that our review of the President's determinations in this context is especially deferential."
Martin was an 1827 case interpreting a predecessor statute to Section 12406, in which the Supreme Court held that "the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons." This strikes me as terrible reasoning, essentially allowing the president to assert extraordinary emergency powers based on his unsupported say-so. If he truly has unreviewable authority to determine whether the relevant "exigency" exists, he could declare that, e.g., illegal marijuana possession qualifies as "rebellion" (or as an inability to enforce the laws with regular forces, so long as many violators aren't caught), and federalize the Guard throughout the nation, indefinitely.
If Martin were a binding precedent indistiguishable from the present case, the Ninth Circuit would have to apply it. But the Ninth Circuit judges themselves note multiple plausible reasons to make distinctions. Among other things, Martin 1) addressed a predecessor statute enacted many decades earlier (Section 10246 was enacted in 1903), 2) it dealt with an obvious genuine "invasion" - the War of 1812, 3) "the Court relied in part on the nature of a foreign invasion and the need for military subordinates to follow orders" [Martin involved a case of a New York militiamen who refused orders to help repel British attacks during the War of 1812], and 4) recent precedents, including the Supreme Court's own approach to similar language in the Alien Enemies Act (authorizing detention and expulsion of non-citizens in the event of "invasion"), are far less deferential. Even if none of these points is individually sufficient to justify reading Martin narrowly, they are surely enough in combination.
In addition, the Ninth Circuit should have paid greater heed to its own stricture that deference should not be applied to presidential determinations made in "bad faith." There is considerable evidence of such bad faith here. Trump has a long history of advocating the use of the military against political opponents, and generally praising political violence against them. More recently, high-ranking administration officials have openly stated that the goal of deploying the military in LA is to usurp the authority of the state and local governments. For example, DHS Secretary Kristi Noem has said that "[w]e are staying here to liberate this city from the socialist and burdensome leadership that this governor and this mayor have placed into this city."
At the very least, if courts (wrongly) reject other reasons for invalidating Trump's federalization of the Guard, they should closely investigate the evidence of bad faith here, instead of just presuming good faith, as the Ninth Circuit judges did. Bad faith, even if present, might not by itself justify striking down the President's actions. Sometimes government officials do the right thing (or at least the legal thing) for the wrong reason. But extensive evidence of bad faith is sufficient reason to deny deference that might otherwise be appropriate.
Finally, I think the Ninth Circuit flubbed the statutory requirement that "federalization orders must be issued "through the governor of the respective State … from which State … such troops may be called." The judges were wrong to conclude this requirement is met by issuing the orders to the state's Adjutant General, a subordinate official who is the commander of state military forces. It seems clear that "through the governor" means "through the governor," not through a subordinate of his. That said, there is legitimate dispute over whether that provision is purely ministerial or whether it requires the governor to consent to the orders.
Overall, the Ninth Circuit decision makes some good points, and gets several important issues right. Sadly, they then largely ruined their own good work by engaging in excessive deference.
As the decision notes, they do not address some important issues still before the trial court, most notably whether the president's use of the military in LA violates the Posse Comitatus Act (which bars the use of the military for civilian law enforcement in most circumstances).
More can be said. But this post is already too long, and I will stop here.
Elizabeth Goitein, mentioned above, has additional analysis and criticism of the Ninth Circuit ruling in an insightful Twitter/X thread.
From today's opinion in Nguyen v. Bonta, written by Judge Danielle Forrest and joined by Judges John Owens and Bridget Bade:
[The] "core Second Amendment right … 'wouldn't mean much' without the ability to acquire arms." Thus, we have "consistently held that the Second Amendment … 'protects ancillary rights necessary to the realization of the core right to possess a firearm for self-defense.'" While we have not defined "the precise scope" of protected ancillary rights, we have held "that the plain text of the Second Amendment only prohibits meaningful constraints on the right to acquire firearms."
To demonstrate this principle, we discuss two of our prior cases. Teixeira concerned a zoning ordinance that made it "virtually impossible to open a [new] gun store in unincorporated [areas of] Alameda County." We nonetheless concluded that the ordinance was permissible because "there were ten gun stores in Alameda County" and buyers could purchase firearms at a sporting goods store located "approximately 600 feet away from the proposed site of [the plaintiff's] planned store." We stated that "the Second Amendment does not elevate convenience and preference over all other considerations."
Similarly, B&L Productions concerned a California law banning firearm sales on state property. We explained that while "a ban on all sales of a certain type of gun or ammunition in a region generally implicates the Second Amendment, … a minor constraint on the precise locations within a geographic area where one can acquire firearms does not." And we upheld the challenged law because "[m]erely eliminating one environment where individuals may purchase guns does not constitute a meaningful constraint on Second Amendment rights when they can acquire the same firearms down the street."
The laws we considered in Teixeira and B&L Productions are plainly distinguishable from the one-gun-a-month law here. Limiting where firearms may be sold, when there are other reasonably available options, is a significantly lesser interference with an individual's ability to acquire (and therefore possess) firearms than banning the purchase of more than one firearm in a 30-day period.
From yesterday's decision by Judges Mark Bennett, Eric Miller, and Jennifer Sung in Newsom v. Trump, granting a stay of the district court's injunction pending appeal:
[U]nder longstanding precedent interpreting the statutory predecessor to 10 U.S.C. § 12406 [which authorizes the President to federalize the National Guard], our review of that decision must be highly deferential. Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when "the President is unable with the regular forces to execute the laws of the United States."
Additionally, the Secretary of Defense's transmittal of the order to the Adjutant General of the California National Guard—who is authorized under California law to "issue all orders in the name of the Governor," Cal. Mil. & Vet. Code § 163—likely satisfied the statute's procedural requirement that federalization orders be issued "through" the Governor….
The court rejected the defendants' argument that the President's decision "is not justiciable under the political question doctrine," and thus left entirely to the President (with review only through the political process). But the court concluded that "The history of Congress's statutory delegations of its calling forth power, and a line of cases beginning with Martin v. Mott (1827), interpreting those delegations, strongly suggest that our review of the President's determinations in this context is especially deferential." The court acknowledged that this deference is not unlimited:
Martin does not compel us to accept the federal government's position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith. In Martin, the Court addressed the argument that "the power confided to the President is a limited power" that "can be exercised only in the cases pointed out in the statute," and the Court explained that "[w]hen the President exercises an authority confided to him by law, the presumption is that it is exercised in pursuance of law." As the Court noted in Martin, a "public officer is presumed to act in obedience to his duty" only "until the contrary is shown."
Moreover, discussing Martin, the Supreme Court has observed that "[t]he nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order," and that "[s]uch measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace." Consistent with Martin, courts may at least review the President's determination to ensure that it reflects a colorable assessment of the facts and law within a "range of honest judgment."
But it concluded that in this case, the President acted within his authority, under the statutory provision authorizing the President to federalize the Guard when "the President is unable with the regular forces to execute the laws of the United States." (The court concludes there's no need to decide whether the President could have also acted under a related provision, which allows federalizing the Guard in cases of "rebellion.")
Justice Barrett rehabilitates Footnote 4, gives credence to Justice Kennedy's animus jurisprudence, and all but says that gays who were affected by a "legacy of de jure discrimination" are a suspect class.
I really, really wanted to like Justice Barrett's concurrence in Skrmetti. Indeed, my initial reaction was optimistic. But after spending forty-eight hours with the opinion, Skrmetti reinforced all of my concerns about Justice Barrett: she is still a scholar trying to approach the law like a law review article, and advance theories without awareness of the practical consequences. To rebut the predictable response, Justice Thomas erred by joining this opinion. Maybe he did so to give his embattled colleague some cover. (I speculated CT did so in 2021.) But I think Thomas will come to regret this vote.
Let's walk through it.
First, Justice Barrett has built her reputation on not deciding issues that are not necessary to decide. Restraint is the name of the game. If so, why did she write this concurrence? The Roberts majority opinion settled the issued on narrow grounds. (And Justice Alito thinks those grounds were contrived.) Barrett does not explain why she addressed whether "transgender status constitutes a suspect class." And if she is willing to resolve this question that is not presented, why did she decline to resolve countless other questions that she thought were not presented? We have no answer. Maybe she will tell us why in her book.
Second, Part I of the opinion provides a readable digest of the Court's Equal Protection Clause jurisprudence. This is Professor Barrett at her best. She is very good at explaining doctrine. Part II explains why transgender people are not a suspect class. This section is largely right, until the penultimate sentence:
To be sure, an individual law "'inexplicable by anything but animus'" is unconstitutional. Trump v. Hawaii, 585 U. S. 667, 706 (2018).
Trump v. Hawaii was decided on the final day of Justice Kennedy's tenure. Animus was a constant theme throughout his cases, including Romer, Lawrence, Windsor, and Obergefell. I was confident that the discussion of animus in Hawaii was done at the insistence of Justice Kennedy to secure his fifth vote. In Skrmetti, Chief Justice Roberts's majority opinion mentions animus only in passing. Yet Justice Barrett made this the key limitation on her decision.
Here, ACB is reanimating perhaps the worst facet of Justice Kennedy's jurisprudence. What does animus mean? As Windsor and Obergefell would explain, animus includes moral disapproval: disapproval based on the morality of gays and lesbians was evidence of animus. And look at the language: "inexplicable by anything but animus." There does not need to be evidence of actual animus. Rather, it is enough that animus is the only possible explanation based on the consequences--this is some sort of disparate impact analysis. Courts can discern animus from the ether. Hawaii used the concept of animus in an unusual Establishment Clause context. But Barrett has now imported that standard back into the Equal Protection Clause.
Why would she do this? I have been celebrating how Justice Kennedy's jurisprudence was (rightly) consigned to the ash heap of history. As Randy and I edit the next edition of the casebook, we are trimming all of the Kennedy decisions. But now Justice Barrett has brought "animus" back to life. Does she realize what she did here? Or was this just a law professor trying to draw analogies and make sense of doctrine? I just don't think she sees these things. Or worse, if she does see these things, and does it anyway, then we should be really worried.
Third, Justice Barrett attempts to develop a theory to understand Footnote Four of Carolene Products. Why do this? Footnote Four was a creation of the New Deal Court that had no bearing in the text or history of the Constitution. Worse still, it was not even adopted by a five-member majority. And you don't have to take my word for it. Here is how Justice Scalia described Footnote Four in Schuette v. Coalition to Defend Affirmative Action (2014)--a concurrence that Justice Thomas joined:
Alert readers will recall that back in February, there was considerable disagreement aired here on the VC about whether or not the DOJ's decision to drop (at least temporarily) the criminal charges against NYC Mayor Eric Adams involved a "quid pro quo," something like:
"Use your mayoral powers to give federal immigration agents greater access to NYC facilities (such as Rikers Island and other prisons) (quid) and we won't prosecute you for bribery and corruption (quo)."
It seemed abundantly clear to me - bordering on the obvious - that there was such a quid pro quo,[1] whether or not it had been expressed out loud or merely, as Justice Kennedy put it once, with "knowing winks and nods."[2] As District Judge Ho put it, in his opinion dismissing the indictment[3]:
"Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions."
Josh Blackman and Paul Cassell, however, thought otherwise.[4]
This question (of whether there was an improper quid pro quo) has come up once again, in a rather interesting and unusual context: a case in NY State court, Council of the City of New York v. Eric Adams in his official capacity as Mayor. As the caption indicates, Plaintiff is the NY City Council – the city's main legislative institution – and it is suing the current Mayor, seeking to nullify an Executive Order that the Mayor issued six days after the case against him had been dismissed.[5] The E.O. in question (E.O. 50) authorized the NYC Department of Corrections to allow federal ICE agents to conduct operations, and to maintain a permanent presence, at the Rikers Island detention facility.
The Council's claim, basically, is that
Adams had a "personal or private interest" in the subject matter of the E.O. because of the deal he had made with federal prosecutors ("cooperate or we'll prosecute");
Because of that personal or private interest, he was required to recuse himself from the matter at hand; and
Under NY law, a failure to recuse oneself from taking action in which one has a "personal or private interest" renders the action null and void.
"[The City Council] has shown a likelihood of success in demonstrating, at a minimum, the appearance of a quid pro quo whereby Mayor Adams publicly agreed to bring ICE back to Rikers Island in exchange for dismissal of his criminal charges. This showing is grounded in
Mayor Adams' public statements;
Mayor Adams' criminal defense attorney's written overtures to the DOJ;
The temporal proximity between these overtures and [DOJ's] directive to dismiss the criminal charges against Mayor Adams;
Statements from former Acting U.S. Attorney Danelle R. Sassoon and Assistant U.S. Attorney Hagan Scotten;
Homan's statement that he will be "in [Mayor Adams'] office, up his b___, saying 'Where the hell is the agreement we came to?"; and
The written findings by District Judge Dale Ho."
I assume that this decision will be appealed by the Mayor, though I have no idea whether or not NY state law allows for appellate review of interlocutory appeals. Things could get interesting if the matter goes to trial.
[1] My position [see here, here, here, and here] was (and is) that the DOJ's motion to dismiss the charges without prejudice was an outrageous and improper attempt to use the threat of criminal prosecution as a means to pressure a public official into co-operating with federal immigration policies. District Judge Ho agreed; his opinion is here, and well worth a quick read.
[2]Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in the judgment) ("The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods.").
[3] Judge Ho did not decide whether there was, or was not, an unlawful quid pro quo (though I think it is fair to characterize him as deeply suspicious). He did ultimately grant the DOJ's motion to dismiss the indictment against Adams, largely on the grounds that
". . . the Court cannot order DOJ to continue the prosecution, and it is aware of no authority (outside of the criminal contempt context) that would empower it . . . to appoint an independent prosecutor. . . .
[T]he Court would be overreaching if it attempted to force this prosecution to continue. [A] court is not situated—either in terms of institutional competence, or as a matter of its proper role in our constitutional system—to make an assessment as to whether a prosecution "should" continue. A court's role is to preside over cases, not to determine if a case should be prosecuted."
But he denied the most odious part of the DOJ's request: that the dismissal be without prejudice, which would have constituted a fairly obvious attempt to ensure Adams' continuing cooperation in compliance with the underlying deal.
[5] I know absolutely nothing about the principles of standing that apply in NY state court, but it does appear that this kind of thing is permitted under those principles (though it would be extremely unlikely to hold up under federal standing rules).
[6] As I'm sure most VC readers are aware, the NY Supreme Court is a trial court, and not, actually, the supreme court of NY; that status belongs to the NY Court of Appeals.
From In re Argue, decided June 2 by Minnesota District Court Judge Charles Webber:
Nautica Alaja Argue wants to change his name to Navier Argue, explaining that he wants his name "to accurately align with his gender identity as a transgender individual." But Argue is a convicted felon {convicted [in 2022] of numerous aggravated robberies and other robberies … that involved more than a dozen separate victims} and therefore can change his name only as allowed by Minn. Stat. § 259.13.
That statute provides that when a prosecuting authority objects to a felon's name-change application (as Ramsey County has done here), a court can grant the application only if the applicant either: (1) "proves by clear and convincing evidence that the request … will not compromise public safety" (among other things), or (2) establishes that failure to allow the name change "would infringe on a constitutional right of the [applicant]." … Argue has not carried his burden of proving by "clear and convincing evidence" that changing his name "will not compromise public safety," and failure to grant his name-change request would not infringe on a recognized constitutional right.
The details related to the application of the statute are in the opinion (for more on Argue's original crimes, see this newspaper article); but here's the rejection of Argue's constitutional claim:
The court appears unmoved by the claim that an earlier ruling sent the "wrong message ... that people of color (all the plaintiffs are Latino) do not have a chance to get their day in this Honorable Court."
From last Friday's opinion by Philadelphia County (Pa.) Common Pleas Court Judge Lyris Younge in Jauregui Law Firm v. Inside Higher Ed (appeal pending):
Plaintiffs Jauregui Law Firm, Raul Jauregui Esquire, and Daniel Boye … [sued] Defendants Inside Higher Ed, Johanna Alonso, Dyller Solomon Law Firm and Barry Dyller Esquire … alleging defamation, false light and commercial disparagement. The suit arises from an article authored by Johanna Alonso and published by Inside Higher Ed on June 13, 2023 …[, which] is a brief synopsis of a series of Title IX suits stemming from an alleged rape that occurred at King's College in Wilkes-Barre Pennsylvania. [The article appears to be this one, though it bears a June 14, 2023 date. -EV]
In under five pages, the Article describes an initial Title IX suit filed by a female student against Plaintiff Daniel Boye, three Title IX counter-suits filed by Mr. Boye against the female student, her mother and her friend, and yet another suit filed by the three women against Mr. Boye and Mr. Jauregui alleging that Mr. Boye's counter-suits constituted an abuse of the legal process and were a deterrent designed to intimidate the women. The Article notes that Mr. Boye was expelled from King's College. In addition, the Article quotes attorneys involved in the suits (including Mr. Jauregui) and a Title IX expert, discusses the potential legal implications of Title IX "countersuits", and whether Title IX proceedings at colleges constitute quasi-legal proceedings….
Defendants are entitled to judgment as a matter of law because the Article is substantially true and accurate. The Plaintiffs claim that the Article is "vile," "drips with venomous derogatory false fact," and was written and published by "depraved liars … who claim to be journalists." However, despite the Article's brevity, the Plaintiffs are unable to point to any material falsity contained therein.
The ruling is the latest in a long line of court decisions striking down executive efforts to attach conditions to federal grants that were not approved by Congress.
Yesterday, in a lawsuit brought by twenty state courts, federal District Court Judge John J. McConnell, Jr. ruled the Trump Administration violated the Constitution when it tried to deny federal transportation grants to states that refuse to help federal authorities detain and deport supposed illegal migrants. The court ruled the Department of Transportation acted illegally because Congress had not authorized it to impose any such conditions on transportation grants, and because immigration enforcement has no meaningful connection to the purpose of the grants:
Defendants' conduct violates the [Administrative Procedure Act] because they acted outside of their statutory authority when they issued the Duffy Directive and imposed the IEC categorically across all U.S. DOT grants when Congress appropriated those funds for transportation purposes, not immigration enforcement purposes….. Congress did not authorize or grant authority to the Secretary of Transportation to impose immigration enforcement conditions on federal dollars specifically appropriated for transportation purposes….
These conditions violate the Spending Clause as well; the IEC is not at all reasonably related to the transportation funding program grants whose statutorily articulated purposes are for the maintenance and safety of roads, highways, bridges, and development of other transportation projects. The Government does not cite to any plausible connection between cooperating with ICE enforcement and the congressionally approved purposes of the Department of Transportation. Under the Defendants' position, the Executive would be allowed to place any conditions it chose on congressionally appropriated funds, even when it would be entirely unrelated to the Department's purpose. Such is not how the three equal branches of government are allowed to operate under our Constitution.
This ruling follows a similar April decision by another federal district court, barring the Trump Administration from denying federal grants to "sanctuary" jurisdictions, which refuse to assist some types of federal immigration enforcement policies.
The two rulings are obviously right, and completely predictable - and, in fact, predicted by me. During Trump's first term, federal courts repeatedly struck down administration efforts to pressure immigration "sanctuary" jurisdictions by attaching conditions to federal grants that were never authorized by Congress. Last November, I predicted we would see a repetition of this pattern under Trump 2.0. It wasn't a hard prediction, and I don't deserve any great credit for it.
In the November post, I noted longstanding Supreme Court precedent holds that conditions on federal grants must 1) be enacted and clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (here, transportation grants cannot be conditioned on immigration enforcement), and 3) not be "coercive." Trump repeatedly ran afoul of these requirements in his first-term efforts to coerce sanctuary cities. And it would seem he hasn't learned from his errors.
Judge McConnell's decision is just a ruling on a preliminary injunction. There is no final decision in this case, and the Trump Administration will probably appeal. But barring a radical break with precedent, that appeal and others like it are extremely likely to fail - and for good reason.
