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In today's decision in Trump v. Slaughter, the Supreme Court ruled that laws protecting the heads of "independent" executive agencies from firing are unconstitutional, because they infringe on the president's constitutional removal authority. In my last post, I noted that the exact scope of this principle is unclear, given the exception the Court carved out for members of the Federal Reserve Board in Trump v. Cook, also issued today. But let's assume that, after Slaughter, protection against removal really is unconstitutional for the heads of all or nearly all previously "independent" federal agencies. If so, I would suggest that that renders the very existence of at least some of these agencies subject to legal challenge on the grounds that the removal protection provisions are not "severable" from the rest.

In his concurring opinion in Slaughter, Justice Neil Gorsuch rightly highlights that Congress might not have created many of the independent agencies in the first place (or at least not given them as much power) if they had known their leadership would be subject to the complete control of the president:

Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today's decision, the President can effectively exercise all those powers too.

It's a development that raises important questions, not least these: Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?

Gorsuch goes on to argue that this problem necessitates stronger judicial enforcement of constitutional nondelegation rules and the related "major questions" doctrine. I agree that these two doctrines are important and valuable constraints on executive power, and that courts should enforce them more aggressively.  But the end of agency head protection against removal doesn't by itself trigger stronger judicial review under these doctrines. Whether a claimed delegation runs afoul of nondelegation and major questions constraints depends on the scope and nature of the power delegated, not on whether it is granted to an agency or to the president, and not on the extent to which the agency heads are insulated from removal.

By contrast, the invalidation of removal protection does matter under the Supreme Court's "severability" precedent, which addresses the question of what to in situations where one part of a law has been invalidated as unconstitutional, but others have not. In such cases, does the rest of the law fall too, or does it remain in place.

The relevant precedent here is far from a model of clarity. But, as a general rule, it turns on how significant the invalidated provision is to the overall statutory scheme, and whether Congress would have enacted the law without the unconstitutional element. Much of that precedent is summarized in an amicus brief I filed along with a cross-ideological group of other legal scholars in California v. Texas (2021), the Obamacare severability case.

The right answer will likely vary from agency to agency. But I suspect that Justice Gorsuch is right to think that at least some of these agencies would not have been created in their current form if not for the expectation that their leaders would be insulated from removal by the White House. If so, now that these protections against removal have been invalidated, their existence can be challenged as "inseverable" from the unconstitutional anti-removal provision.

If the ensuing litigation results in the invalidation of the agencies, Congress could, of course, try to recreate them with new legislation. But the new agencies might not be granted as much power as their predecessors.

I will not here attempt to canvas the relevant agencies or the gauge the prospects of inseverability lawsuits challenging each one. As already noted, the legal viability of a challenge may vary from case to case. In addition, courts may be reluctant to invalidate some agencies because of accumulated reliance interests or because of their economic and political significance. But I urge public interest groups, industries, consumers, and others affected by these agencies' regulatory powers to give serious consideration to challenging them on this basis.

NOTE: For those keeping score, the position I tentatively advocate here is totally consistent with what I advocated in the Obamacare severability litigation referenced above. In various writings and amicus briefs during the course of that litigation, I argued that what was left of the Obamacare "individual mandate" after Congress largely neutered it in 2017 (by abolishing the penalty for noncompliance) was too insignificant to render it inseverable from the rest of the Affordable Care Act. By contrast, protection of agency heads from removal is a far more important part of the statutes establishing at least some of the regulatory agencies to which it applied until ruled unconstitutional in Slaughter.

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I have a regular routine for Supreme Court decision days. On one monitor, I have the SCOTUSBlog liveblog. On a second monitor, I have the SupremeCourt.gov opinions page open. I keep Adobe Acrobat ready on a third screen. And the fourth screen is the FantasySCOTUS database, where I immediately score the cases.

Usually SCOTUSBlog announces the case name and the authoring justice a few moments before the PDF link pops up on the website. (Circa 2010, the PDF links were simply the [docketnumber.pdf], so I was able to access some PDFs early by anticipating what cases came down; that practice was changed after I wrote about it.) When a Justice announces a dissent from the bench, we have to wait some time until the next opinion is released.

Today, the release sequence was predictable, until it wasn't.

At 10:01, SCOTUSBlog announced the majority opinion in Watson. Justice Barrett tends to offer long-ish summaries. At 10:09 SCOTUSBlog announced Justice Kagan's opinion in Chartie. At 10:15, Amy Howe announced: "We have Slaughter and Cook, both from Roberts." Both PDFs were posted at that time.  I assumed that Roberts announced from the bench that he wrote the majority opinion in both cases, which is why the files were posted online. But we learn from Mark Walsh's indispensable reporting that the sequence was different:

Roberts announces that "I have the opinion of the court in two related cases." This could be the transgender sports cases, but he quickly adds, "I will start with Trump v. Slaughter."

Even though Roberts had not yet begun announcing the opinion in Cook, that opinion was still posted online immediately, and was distributed to the press room as a bundle.

At this moment, reporters in the Press Room are being handed copies of both Slaughter, about President Donald Trump's attempt to remove a member of the Federal Trade Commission, and Trump v. Cook, about his efforts to remove a member of the Federal Reserve Board of Governors. In fact, the two lengthy opinions have rubber bands around them.

I cannot recall an instance where a Justice announces two related cases, and both PDFs are posted simultaneously.

For example, on May 28, Justice Barrett had the majority opinion in two related cases, Rutherford v. United States and Fernandez v. United States. SCOTUSBlog announced Fernandez at 9:02 and posted the PDF at that time. The Fernandez dissent referenced Rutherford, which, as a commenter pointed out, "currently does not exist." At 9:09, SCOTUSBlog announced the judgment in Rutheford, and the PDF came a minute later. This is the usual routine for as long as I can remember.

Indeed, Mark Walsh said that between Roberts's majority and Sotomayor's seventeen page dissent, approximately twenty-seven minutes would elapse.

But it will be quite a while before we get to Cook. . . .

Roberts, who has kept his reading glasses on during the dissent, offers no off-the-cuff retorts or rebuttals. He says, "I will now turn to the opinion in Number 25A312, Trump versus Cook."

It is 10:42, and the rest of the world, including the Press Room, the president, the markets, and the nation, have known the outcome of this case for a good half hour before most of us in the courtroom do (given it was already posted on the court's website and reported on in places such as SCOTUSblog).

Mark is wise to reference markets. A friend wrote, "Roberts was so spooked out about spooking out the stock market that he kept Cook for himself and then apparently had it released to the public before it was even announced in court." I believe it.

The Chief wanted to avoid nearly thirty minutes of suspense, while Sotomayor read her dissent, concerning the fate of the Federal Reserve. He remembers well the uncertainty that unfolded during the Obamacare handdown. The markets could have reacted negatively without knowing the fate of Cook. So the Chief Justice (likely) ordered the Court to post the PDFs and release the bundled opinions together. And of course, the Chief will hold birthright citizenship for the last moments of the term to signal to the public how nonpartisan the Court is.

I have finished reading the Slaughter majority, and will have a lot to say in due course. Here, I'll just offer an initial thought. The Chief Justice is very critical of the Humphrey's Executor majority, and suggests it was something of a political ruling to clap back at President Roosevelt. Roberts uses that background, at least in part, to justify overruling the decision. I wonder if Roberts had even a moment of cognitive dissonance. Virtually every major ruling he issued--even the timing of Slaughter itself--is based on Roberts's crude sense of politics. How will Roberts's political precedents be viewed once he is off the bench? I would wager they'll be treated with the same dignity that Humphrey's Executor was afforded. Whatever mishigas the Chief was trying to do with Trump will be forgotten, as well the ill-fated effort by the New Deal Court to thwart FDR.  Roberts's opinions cannot compare with a ruling like Justice Scalia's Morrison dissent, which stood the test of time and prevailed.

The post Chief Justice Roberts (Likely) Ordered The Release Of <i>Cook</i> 30 Minutes Before He Announced It appeared first on Reason.com.

Today, the Supreme Court ruled that Slaughter gets slaughtered, but that Cook won't get cooked! In Trump v. Slaughter, a 6-3 Court divided along ideological lines ruled that the president generally has absolute power to remove the heads of executive branch agencies, even when Congress has enacted laws limiting that authority. At least as a general rule, those laws are - according to the Court - unconstitutional infringements on the president's executive power. Thus, Trump can give Democratic Federal Trade Commission member Rebecca Slaughter the axe.

By contrast, in Trump v. Cook, a 5-4 majority (including two of the justices who were also in the majority in Slaughter), ruled that Trump does not have unlimited power to fire members of the Federal Reserve Board. The Court ruled that the law allowing him to remove them only "for cause" is constitutional, and that "for cause" is a fairly high standard, compatible with maintaining the Fed's "independence." Moreover, if the president tries for fire board members for cause, he has to give them substantial due process. This doesn't definitively save Federal Reserve Board of Governors member Lisa Cook's job (Trump claims he can fire her due to accusations of mortgage fraud). But it certainly gives her and her colleagues strong protection against removal, and makes it clear that the president cannot simply fire them whenever he wants.

Elsewhere, I have outlined my reservations about unitary executive theory, which focus in large part on its application to agencies that wield powers the federal government was not supposed to have in the first place. I also agree with most of prominent originalist legal scholar Larry Solum's critique of the Court's opinions in Slaughter and Cook. Even if they are right about the bottom line in one or both cases, the majority's reasoning is far from air-tight.

 Here, I focus on the question of whether the two rulings are compatible with each other. It seems to me highly likely, though not certain, that the answer is "no." In addition, the tension between the two makes it possible that the Federal Reserve won't be the only exception to the rule in Slaughter. When it comes to presidential removal power, some federal agencies are more equal than others, and it is not entirely clear which ones are which.

In her dissent in Cook, Justice Amy Coney Barrett writes that "the Court's holding is in serious tension with Trump v. Slaughter, which we also decide today." She adds that, under the majority's approach it is not clear whether "the Federal Reserve [is] unique, or might history sanction other exceptions too?" Although I don't necessarily agree with all the other points she makes in her dissent, she seems right about this aspect!

Chief Justice John Roberts' majority opinion in Cook, explains the Federal Reserve Board's exception status as follows:

Justice Thomas [in his dissent] declares the statute "unconstitutional," an infringement on the President's power to "remove his subordinates at will,…"

We disagree, as did "the founders of our Government and framers of our Constitution" when they "were actively participating in public affairs." Myers v. United States, 272 U. S. 52, 175 (1926). They knew from experience (and Hamilton reminded them) of the calamities that could arise from even the "suspicion" of political manipulation of monetary policy. Report on a National Bank 331. So when they established the First Bank of the United States, they guaranteed its independence from Presidential control. Their successors did the same for the Second Bank. That enabled both banks to serve as the "great regulating wheel" of the early American financial system…. The Federal Reserve follows in this lineage….

It is true, of course, that this tradition has not stood still; as Justice Thomas notes, the Federal Reserve is more powerful than its predecessors, managing a vastly more complex economy in a vastly more complex world…. We see no reason, however, why our central bank ought to be "trapped in amber" any more than any other aspect of our constitutional scheme…. What matters is that the Federal Reserve remains "consistent with the principles that underpin" the First and Second Banks—namely, that monetary policy should not be subject to political interference…

This is far from satisfying. If the issue is simply that central bank independence is a longstanding tradition, the same is true of many other independent agencies, some of which - as the dissenters in Slaughter point out - have existed for a century or more.  I certainly agree - as  do monetary economists across the political spectrum - that central bank independence is important for ensuring the stability of the monetary system and curbing inflation. But that is a policy consideration of a kind that is not normally supposed to influence originalist legal interpretation. Moreover, there are policy arguments (occasionally perhaps even strong ones) for the independence of various other regulatory agencies.

If the claim is that the Federal Reserve is different because it has important non-regulatory functions, the same is true of many other agencies, too - including the FTC (at issue in Slaughter). As Justice Gorsuch notes in his concurring opinion in Slaughter, "Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today's decision, the President can effectively exercise all those powers too." Moreover, the Slaughter majority  emphasizes that "the President may remove his subordinates at will," at least when it comes to officials who wield any significant executive power at all. As the Cook dissenters point out, members of the Federal Reserve Board exercise various executive powers, such as regulating banks.

If majority's position rests on specifically on the importance of continuity with the First and Second Banks of the United States, it is somewhat strange that this particular continuity gets such exalted status. It is especially strange in light of the fact that many of the Founders - including James Madison, Thomas Jefferson, and Edmund Randolph (the first Attorney General) believed that the Bank of the United States was unconstitutional. That doesn't strike me as the kind of consensus that should lead originalists to elevate this institution's pedigree over that of others.

As Larry Solum notes, the Cook majority's approach to the Fed has much in common with the "history and tradition" test the Supreme Court has been using in Second Amendment cases, since the 2022 Bruen decision. In both cases, the Court looks to historical analogues to assess the constitutionality of modern laws and policies.  I would add that the criticisms I and others have raised against the Bruen test apply here too. While I favor strong protection for Second Amendment rights, the Bruen test is often amorphous, subjective, and too far removed from the actual text and original meaning. The same is true of the Court's use of similar reasoning in Cook.

All of this raises the prospect that it may be premature to declare the demise of all independent agencies other than the Fed. Perhaps the latter is not a unique exception, but one that can set a precedent for others. Justice Barrett raises this possibility in her Cook dissent. In his majority opinion in Slaughter, Chief Justice Roberts notes that "we have left open the possibility that some functions traditionally handled outside the Executive
Branch may not be encompassed by Myers's general rule [that the president must be able to fire subordinates]." He also emphasizes that the Court does not "determine the fate of officials not before us."

Cynics will say that what really matters here is that the justices know that central bank independence has enormous real-world significance to the stability of the economy, whereas they (or at least the conservatives) assign less value to the independence of other agencies. But I suspect at least some of the justices take the "history and tradition" approach seriously, and therefore will make at least some good faith effort to apply it elsewhere - just as they have tried to do in Second Amendment cases, including the 2024 Rahimi decision, where all but one conservative justice (Thomas) voted to uphold a gun control law. But even if the distinction is driven by policy concerns, it's possible the Court will find other agencies where such concerns loom large enough in the minds of a majority to make another exception to the rule.

For these reasons, I think today's decisions may not be as clear and definitive as they might seem. As is often the case, future rulings may shed more light on things. Perhaps the Court will give us a better explanation of why the Fed is different in a way that applies to few if any other agencies. Perhaps they will elucidate the exception in a way that encompasses a good many other agencies, too. There may be other possibilities, as well. We shall see.

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The "interest of parents in the care, custody, and control of their children[] is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville (2000). But that right is mere rhetoric if federal judges bar parents from court via a miserly interpretation of standing doctrine—a question, as three Justices recently recognized, that is of "great and growing national importance." Lee v. Poudre Sch. Dist. R-1 (Alito, J., statement).

It is certainly important to Petitioners, who are parents of gender-confused children (including one child who previously ran away) and who do not wish to affirm that confusion. They challenged Washington laws designed to give runaway minors "gender-affirming treatment" without parental notice or consent. But despite their being the challenged laws' target, and despite their alleging specific current harms and a substantial risk of specific future harms to their ability to parent, the Ninth Circuit held that Petitioners lacked Article III standing.

The question presented is:

Whether parents have standing to challenge a law or policy that deliberately displaces their decision-making role as to "gender transitions" of their children, and in so doing creates present and likely future impediments to their ability to parent their children as they deem best for them.

And from the State's response, which urged the Court not to grant review:

2023 amendments to Washington law transferred the responsibility to notify parents about runaway youth from licensed homeless shelters to the state's child welfare agency, which also must offer family reconciliation services and behavioral health referrals to the youth and their family. Petitioners are parents and organizations who challenged the revised laws, basing their claim of injury on their worry that at some point in the future, their children might identify as transgender, then might run away, then might seek refuge with a licensed shelter, then might decline reconciliation services, then might accept a referral for behavioral health services, and then might ultimately receive gender-affirming care. Petitioners alleged that this potential chain of events affected their parenting style and might affect their children at some future point.

The lower courts found that any changes in parenting style were self-imposed, and that this theoretical chain of events was too speculative to show that the challenged laws have injured or will likely soon injure Petitioners, and dismissed the case for lack of Article III standing.

The question presented is:

Whether Petitioners lack standing to challenge state laws that impose no obligations on them based on their speculation that the laws may someday affect their families?

And a summary of the laws from the decision below:

Enacted in 1985, Wash. Rev. Code § 71.34.530 was passed as part of a comprehensive law "ensur[ing] that minors in need of mental health care and treatment receive appropriate care and treatment." 1985 Wash. Sess. Laws, ch. 354, § 1. It provides that any minor aged 13 and older "may request and receive outpatient treatment without the consent of the adolescent's parent." Outpatient treatment includes non-residential programs offering, inter alia, mental and behavioral health care….

Enacted in 2023, ESSB 5599 approved a set of amendments to Wash. Rev. Code § 13.32A.082. That law, which was enacted in 1995, sets forth a system of notification requirements that apply when a licensed youth shelter "shelters a child and knows at the time of providing the shelter that the child is away from a lawfully prescribed residence or home without parental permission." Upon admitting such a child, the shelter "must contact the youth's parent within 72 hours, but preferably within 24 hours." However, in the presence of "compelling reasons," including any "[c]ircumstances that indicate that notifying the parent or legal guardian will subject the minor to abuse or neglect," the shelter may forego contacting the child's parents and contact the Washington Department of Children, Youth, and Families (DCYF) instead. Upon contact, DCYF must "make a good faith attempt to notify the parent that a report has been received and offer services to the youth and the family designed to resolve the conflict … and accomplish a reunification of the family."

ESSB 5599 adds to this framework by creating a notification pathway that is specific to youth "seeking or receiving protected health care services," including "gender-affirming treatment" and "reproductive health care services." Under the existing framework set forth in Wash. Rev. Code § 13.32A.082, licensed shelters that took in such children were obligated to notify their parents so long as doing so would not "subject the minor to abuse or neglect." ESSB 5599 modifies this framework by providing that the fact of a child's "seeking or receiving protected health care services" creates an additional instance in which the shelter's obligation to notify the child's parents is voided. In these situations, as when the shelter fears potential abuse or neglect by the child's parents, the shelter may again forego contacting the child's parents and contact DCYF instead.

As in a case involving potential abuse or neglect, a licensed shelter's report to DCYF will again trigger DCYF's good-faith obligation "to notify the parent that a report has been received and offer services to the youth and the family designed to resolve the conflict … and accomplish a reunification of the family." ESSB 5599 further specifies that, if a licensed shelter notifies DCYF that it has taken in a minor seeking or receiving "protected health care services," DCYF must specifically offer two types of services. First, DCYF must "[o]ffer to make referrals on behalf of the minor for appropriate behavioral health services." Second, DCYF must "[o]ffer services designed to resolve the conflict and accomplish a reunification of the family." …

Enacted during the same session as ESSB 5599, SHB 1406 implements two additional revisions to the framework set forth in Wash. Rev. Code § 13.32A.082. First, it creates additional rules concerning DCYF's good-faith obligation to notify a child's parents and offer services after receiving a report of a runaway child. Specifically, in addition to "notify[ing] the parent that a report has been received," DCYF must offer "family reconciliation services," which are "services … designed to assess and stabilize the family with the goal of resolving crisis and building supports, skills, and connection to community networks and resources." DCYF must offer these services "as soon as possible, but no later than three days, excluding weekends and holidays, following the receipt of a report."

Second, SHB 1406 expressly recognizes a pathway for qualifying minors to stay in a licensed shelter for up to 90 days without parental permission. This pathway is only available in two situations: (1) if the shelter "is unable to make contact with a parent despite their notification efforts" to the parent or DCYF, or (2) if the shelter "makes contact with a parent, but the parent does not request that the child return home." In either scenario, the shelter must re-contact DCYF, which again must offer reconciliation services to the family.

The plaintiffs are represented by Gene Schaerr, Ed Trent, Hannah Smith, and James Phillips of Schaerr | Jaffe LLP, the firm with which I'm a part-part-part-time academic affiliate; but I have not been involved in this case.

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The Chief Justice wrote the majority opinion in both Cook and Slaughter. There was't much of a surprise here. Yet, I still cannot believe I lived to see the day that Humphrey's Executor was overruled. Somewhere, Justice Scalia is smiling.

I predicted that Justice Kagan would write Chartie. Justice Alito still seems upset about Carpenter.

I also predicted that Justice Barrett would write Watson, though I wasn't sure how she would vote. It turned out she voted opposite the conservatives.

Back in June 2022, I think I was the first person to write about the so-called 3-3-3 Court, though other have picked that term up. Yet, that framing didn't hold very long, if it ever did. This term has fractured that idea.

There are four remaining cases.

The Chief Justice clearly has birthright citizenship. He will save it for the last hand-down of the term, so he can rule against the President and signal to the world how non-political the Court is just in time for Independence Day.

I have long thought Justice Alito would write NRSC v. FEC. From the December sitting, only Alito and Sotomayor have not yet written. I think it extremely unlikely Sotomayor has this majority opinion.

Given that the Chief wrote Cook, I think it is unlikely that he also wrote both transgender athletics cases from January. They could go to Gorsuch, Kavanaugh, or Barrett. However, Gorsuch and Barrett both already have seven opinions for the term. I doubt they have these two huge cases. Justice Kavanaugh only has four opinions for the term, so I think he gets them both, bringing his total to six. The wildcard is that Kagan hasn't written for January, and has only six for the term. If Kagan swung right, maybe the Chief assigned her the case. I'm doubtful. Coach Kavanaugh has the sports cases.

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Today the Supreme Court issued its long awaited decisions in Trump v. Slaughter and Trump v. Cook, two cases concerning the ability of the President to remove agency officials. The Chief Justice wrote for the Court in both cases, and the results in each case were what was generally expected.

In Slaughter the Court overruled Humphrey's Executor, and held that the heads of agencies exercising significant executive power must be removable at-will by the President. This means the President can remove members of the Federal Trade Commission and other multi-member agencies previously considered to be "independent agencies." The vote was 6-3 along ideological lines. Justice Sotomayor wrote the dissent.

In Cook, the Court denied President Trump's application for a stay preventing him from removing Cook from the Board of the Federal Reserve for cause. In the process, the Court rejected the argument that the President's allegation of cause was unreviewable and concluded that the statutory requirements for removal were not satisfied. Even though the underlying constitutional question was not presented to the Court, it went on to hold that the for-cause protections for members of the Federal Reserve are constitutional. Tjhe Court split 5-4. The Chief was joined by Justices Sotomayor, Kagan, Kavanaugh, and Jackson. Justices Thomas, Alito and Barrett each authored dissents (with Gorsuch joining Justice Alito). Justice Thomas was alone in arguing that the removal protections for the Federal Reserve are unconstitutional.

Here is the Chief's summary of the Slaughter opinion:

Nearly 250 years ago, the Framers decided to vest "[t]he executive Power" in one person—"a President of the United States of America." Art. II, §1, cl. 1. The choice was not made lightly. Within living memory were the "long train of abuses and usurpations" of a King who reigned as "a Tyrant." Declaration of Independence ¶¶2, 30. Indeed, several delegates to the Constitutional Convention pushed for a multimember council instead of "unity in the Executive magistracy," which they feared would serve as "the foetus of monarchy." 1 Records of the Federal Convention of 1787, p. 66 (M. Farrand ed. 1911) (Farrand's Records) (E. Randolph). But unity won out. Our Constitution's drafters knew from experience that a "plurality in the executive"—the model in use by most States at the time—not only "diminishe[s]" the "activity, secrecy, and dispatch" necessary to ensure "good government" but "tends to conceal faults and destroy responsibility." The Federalist No. 70, pp. 423– 424, 427 (C. Rossiter ed. 1961) (A. Hamilton). With just one President in charge, they reasoned, there would be no doubt "on whom the blame or the punishment of a pernicious measure . . . ought really to fall." Id., at 428.

One hundred years ago, this Court honored the Convention's choice in the seminal case of Myers v. United States, 272 U. S. 52 (1926). There, we held that the Constitution "grants to the President" the "general administrative control of those  executing the laws, including the power of appointment and removal of executive officers." Id., at 163–164. Because no one could "execute the laws" "alone and unaided," Chief Justice Taft explained for the Court, the President must be permitted to "select those who . . . act for him" and "remov[e] those for whom he can not continue to be responsible." Id., at 117. "[T]o hold otherwise would make it impossible for the President" to fulfill his constitutional obligation "to take care that the laws be faithfully executed." Id., at 164.

Today we confront one of several regulatory agencies that deviate from this model of Presidential supervision—the Federal Trade Commission (FTC). Since its creation in 1914, the FTC has accumulated vast rulemaking, enforcement, and adjudicatory powers under more than 80 statutes. Not only does it promulgate rules that carry the force of law, but it also enforces those rules against private parties, collecting civil penalties in the billions of dollars. Its powers, however, do not belong to the President or his appointees alone; they instead belong to five Commissioners, each of whom serves for seven years and may be removed by the President only "for inefficiency, neglect of duty, or malfeasance in office." 38 Stat. 718, 15 U. S. C. §41.

We hold that such protection from removal is contrary to the separation of powers enshrined in the Constitution.

Justice Thomas joined all but Part III-B of the Chief's opinion, and Justice Gorsuch wrote a solo concurrence.

And here is the Chief's intro from Cook:

Last August, for the first time in the Federal Reserve's 111-year history, the President attempted to fire one of its Governors. A few weeks later, a federal court issued an injunction to prevent him from doing so. We decide whether that order should remain in effect pending the conclusion of litigation over the attempted removal.

And his opinion's conclusion:

As the Government concedes, Congress limited the President's power to remove Governors for good reason—"[t]o preserve the independence of the Federal Reserve" and to continue the "long tradition" of "monetary policy . . . exercised independent of . . . executive influence." Tr. of Oral Arg. 48 (statement of the Solicitor General).

Any change in that scheme must come from Congress, not the courts. That is why we cannot accept the Government's contentions in this case. To do so would allow the President to remove a member of the Federal Reserve at any time, for any reason, without any notice before, and without any judicial check after. That would turn for-cause protection into little more than at-will employment.

To be clear, the ultimate question of whether the President can remove Cook for cause will depend in part on the underlying facts. In this opinion, we have not addressed the facts, as they have yet to be found or analyzed under the relevant legal standards. Rather, we have simply addressed the parties' arguments about the appropriate legal standards under which the facts must be evaluated.

The application for a stay is denied.

There's clearly more to unpack in Cook, especially in light of the separate opinions, including concurrences by Kavanaugh and Jackson in addition to the three dissents, each of which has a slightly different focus.

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Alan Dershowitz sued respondent, a major news network, alleging that it defamed him. Because Dershowitz is a "public person," our precedents required him to prove not only the elements of common-law defamation, but also that the network acted with "actual malice." See Gertz v. Robert Welch, Inc. (1974). Predictably, Dershowitz did not prevail under that exacting standard, which this Court created in New York Times Co. v. Sullivan. Dershowitz now asks this Court to overrule Sullivan and related precedents.

The "actual malice" standard for public figures "bears 'no relation to the text, history, or structure of the Constitution.'" Berisha v. Lawson (2021) (Thomas, J., dissenting from denial of certiorari); see also Gertz (White, J., dissenting); case below (Lagoa, J., concurring). Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby (Thomas, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures. See, e.g., Berisha (Gorsuch, J., dissenting from denial of certiorari); Tah v. Global Witness Publishing, Inc. (D.C. Cir. 2021) (Silberman, J., dissenting); Gertz (White, J., dissenting). I would have granted certiorari to do so in this case.

As the citations show, Justices Thomas and Gorsuch have been arguing in favor of revisiting Sullivan and its progeny in recent years—but there's no evidence any Justices have joined them, despite those arguments. Then-Professor Kagan expressed skepticism  in 1993 about Sullivan, and, even more, about some of the cases extending it beyond public officials (Sullivan itself spoke only of lawsuits brought by public officials), but I've seen no evidence that she's willing to reverse any of the precedents beyond that. And I haven't seen any evidence that the other Justices, including those who often agree with Justices Thomas and Gorsuch on other matters, agree with them on reversing the First Amendment defamation cases.

Recall that it takes four votes for the Court to agree to hear a case, and five votes for it to decide it on the merits (including in a way that would overrule a precedent). At this point, Sullivan and its progeny look fairly secure.

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But the plaintiffs also sued their union, the AFA (the Association of Flight Attendants-CWA AFL-CIO), for religious discrimination. And the panel also unanimously allowed that claim to go forward. First, a bit of the factual allegations:

While drafting the company's response [to the two plaintiffs' posts], Andy Schneider, Alaska's Senior Vice President of People, coordinated with AFA Master Executive Council President Jeffrey Peterson. The AFA Master Executive Council is the main governing body for AFA's membership at Alaska. As Master Executive Council President, Peterson was the executive officer in charge of administering the collective bargaining agreement between Alaska and AFA. Peterson had substantial communications with Alaska about plaintiffs' posts on Alaska's World as the company was contemplating its response and disciplinary actions against the plaintiffs….

Peterson, the AFA Master Executive Council President, separately sent an email to his AFA colleagues expressing dismay about Smith's post. Referencing Smith, he wrote, "Employees get to be bigots in their private lives and to express their bigoted and misinformed opinions while not at work—as horrifying as that may be." He added that "the post is reprehensible and there should be repercussions." Peterson also told others at AFA that "this will be an ongoing and evolving conversation with management over the next couple weeks."

Peterson separately texted "I hate her" (referring to Smith) to a friend who was an Alaska pilot. He also texted Toni Monroe, an Alaska employee, that Smith's post was "bullshit" and that "Mngmt needs to send [Smith's] bigoted ass packing for a variety of reasons." Still, Peterson informed his AFA colleagues that the union would "represent [Smith] through the grievance process fairly, in good faith, and without discrimination." …

That same day, Peterson flagged Brown's comment to Alaska management in a text chain that included Alaska's Carmen Williams and Michaela Littman, the Managing Director of Flight Operations. Peterson texted these Alaska executives to "[c]heck out Marli Brown's post on [Alaska's World] re: Equality Act. Definitely lighting up social media tonight, as if Lacey [Smith] wasn't enough." Peterson then lamented, "I wish fewer people would struggle so much with unifying their faith with inclusivity." Peterson later confirmed that it was unusual for him to get involved with Alaska's internal response to disciplinary incidents.

Independently, AFA representative Terry Taylor posted in a Google chat with other union officials: "Can we PLEASE get someone to shut down comments, or put Marli and Lacey in a burlap bag and drop them in a well" (Taylor later revised that message), and also that Brown "needs to go!" In an email to another flight attendant who had complained about the posts, Taylor called the posts "reprehensible." Taylor would later serve as Brown's union representative in Alaska's disciplinary proceedings against Brown.

Union Grievance Chairperson Stephanie Adams privately described Brown's comments as "shitty," also telling Taylor that she expected Brown to receive "[a]t least a suspension," to which Taylor responded: "I certainly hope so!" Adams in private texts also distinguished Brown from her own friends, who are "good women with good values and believe in equality." …

During the investigatory meeting in which Brown relayed her religious concerns, her AFA representative, Terry Taylor, privately texted AFA's Stephanie Adams, "[a]pparently [Brown] can't stop herself … I may hurl," with the text exchange culminating in Adams writing to Taylor: "Nice poker face … NOT." …

AFA filed a grievance on Brown's behalf. According to Brown, she wanted to raise her concerns about Alaska's treatment of her religious beliefs in the grievance process, but AFA urged her not to. AFA did not otherwise raise religious discrimination at the grievance hearing. Instead, at the grievance meeting on March 30, 2021, Brown reiterated that she never intended to hurt her coworkers, with Taylor highlighting Brown's "unblemished" employment record at Alaska. Taylor also stated that Brown's comment was "unfortunate" and "offensive," but that in Taylor's opinion, Brown was not "beyond salvation."

Brown's grievance was denied on April 13, 2021, and Alaska refused to afford Brown a "last chance agreement" to be conditionally reinstated. AFA subsequently declined to arbitrate Brown's case, concluding that it was unlikely to succeed….

And from the court's legal analysis:

Brown … established a genuine dispute of material fact over whether AFA "discriminated against" Brown, "adversely affected h[er] status as an employee," or "caused or attempted to cause" Alaska to discriminate against Brown "because of" her religious beliefs. Under our cases, a union under Title VII "has an affirmative obligation to oppose employment discrimination against its members," and if the union instead "acquiesce[s] or join[s] in the Company's discrimination practices, it too is liable to the injured employees."

In this case, as we recounted above, AFA (through Peterson) became immediately engaged in Alaska's efforts to investigate Brown and Smith, even though it was "rare" for Peterson to get involved in discipline cases. In the case of Brown (and also Smith), it appears that Peterson affirmatively reported Brown's post to Alaska leadership, which was also rare for him to do. Peterson was otherwise intimately involved in communicating with Alaska about the company's response to the Smith and Brown posts. And critically, it was Peterson who used the words "bigots" and "bigoted," and who had expressed exasperation to Alaska over plaintiffs' purported inability to "unify[ ] their faith with inclusivity." …

In addition, there is a genuine dispute whether AFA's representation of Brown reflected bias against her because of her religious beliefs. Brown maintains that in the lead-up to her March 4, 2021 meeting with Alaska investigators, her AFA representative, Terry Taylor, was dismissive of Brown's understanding of the Equality Act and her request for a religious accommodation. During that meeting, Brown maintains that "Terry said very little in my defense," and "[e]ven though [Brown] had told Terry that [Brown's] question came from [her] religious beliefs, [Terry] did not mention that."

The record raises factual questions about whether AFA's representation of Brown was colored by potential disagreement with her religious views. As Brown was advocating a religious defense during her investigatory meeting, it was AFA's Taylor who privately texted "I may hurl" to her AFA colleague Stephanie Adams, who was also participating in the meeting. As noted above, Adams had written to others that Brown was unlike her own friends, whom she described as "good women with good values and [who] believe in equality."

Taylor had also earlier written in private communications to other AFA colleagues that Brown "needs to go!," that the Smith and Brown posts on Alaska's World were "reprehensible," and that someone should "put Marli and Lacey in a burlap bag and drop them in a well." Although not all these comments had a clear religious valence considered in isolation, in the context of the rest of the record as a whole, a jury could regard them as additional evidence that AFA personnel harbored general disagreement with Brown's religious beliefs, which may have affected their representation in the disciplinary process.

Going into the March 30, 2021 grievance hearing, Brown again claims that Taylor was dismissive of her religious concerns, with Taylor allegedly telling Brown that her post on Alaska's World was "wrong and hurtful" and that Brown "did not have religious protections because what [she] did was wrong." Brown further claims that Taylor tried to dissuade her from raising religious discrimination and accommodation at the grievance hearing. At the grievance hearing itself, moreover, Brown claims that "Terry never defended my comment as arising from my religious beliefs and concerns, nor did she raise my concern that I was being discriminated against on the basis of religion." Taylor instead reportedly described Brown's comments as "unfortunate" and "offensive," while maintaining that Brown had a strong employment record and was not "beyond salvation."

For its part, AFA maintains that it adequately defended Brown and protected her interests, even if some AFA employees may have disagreed with Brown's position on the Equality Act as a policy matter. AFA also points out that after the grievance hearing, Brown expressed that AFA had done a good job defending her. AFA's account may ultimately carry the day with the jury. But between the comments that could be interpreted as expressing a negative view of Brown's faith, Taylor's claimed unwillingness to defend Brown on religious discrimination grounds, and Taylor's efforts to dissuade Brown from raising this defense, it is genuinely disputed whether AFA attempted to cause Brown's termination based on her religious beliefs or acquiesced in it. …

For substantially the same reasons as Brown, we further hold that there is a genuine dispute of material fact whether AFA attempted to cause Smith's termination based on her religious beliefs or acquiesced in it.

As was true in the case of Brown, AFA's Peterson was heavily involved in Alaska's efforts to investigate and discipline Smith, even though this level of involvement was rare for him. Peterson's "struggle with faith" text extended to Smith as well as Brown, and he repeatedly referred to Smith as a "bigot" and "bigoted." As we noted above, Peterson did tell others at AFA that the union would "represent [Smith] through the grievance process fairly, in good faith, and without discrimination." But a reasonable jury could find that Peterson's explanation was not believable when, among other things, he was internally saying that "Mngmt needs to send [Smith's] bigoted ass packing for a variety of reasons."

Similarly, during the investigatory and grievance process, Smith claims she felt pressured not to raise her religious objections to the Equality Act, although it is not as clear from the record that this claimed pressure came from AFA. However, during internal AFA deliberations over whether to arbitrate Smith's grievance, notes reflect Peterson stating that Smith "[c]an be a bigot at home but not at work."

Ultimately, although there is less evidence that AFA attempted to dissuade Smith from raising a religious defense than in the case of Brown, the fact remains that the union was handling both cases at the same time, and the "bigot" comments were specifically directed to Smith. Under these circumstances, we believe that a jury should consider the question of whether AFA violated Title VII in its handling of Smith's investigation and grievance….

Stephanie N. Taub, David J. Hacker, Jeffrey C. Mateer, Rebecca R. Dummermuth, and Tabitha M. Harrington (First Liberty Institute) and Andrew W. Gould (Holtzman Vogel Baran Torchinsky & Josefiak PLLC) represent plaintiffs.

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ENRD at the Department of Justice is getting a new name. According to an op-ed in the Wall Street Journal by ENRD's Principal Deputy Assistant Attorney General Adam Gustafson, the Environment and Natural Resources Division will be renamed the Energy and Natural Resources Division.

From the op-ed:

Over the past two decades, the division has played a central role in the responsible production and use of energy, driven by technological advances from the shale revolution to AI. To recognize this evolution, we will now rename it the Energy and Natural Resources Division.

The division's charge to steward America's environment responsibly is unchanged. The environment is our nation's greatest natural resource, and the new name captures that priority. We're proud of the results we've achieved over the past 17 months against air and water pollution, lead poisoning, ozone depletion and radioactive waste. Our achievements include last week's landmark multistate settlement to address forever chemical pollution and a $100 million penalty secured at trial for industrial air pollution near Detroit. The division continues to enforce environmental laws, punish fraudsters and smugglers, honor our nation's treaty and trust obligations to tribes, and defend federal agencies' efforts to protect and develop responsibly our wildlife and natural resources.

At the same time, we will fight to ensure that the U.S. remains energy dominant for the next 250 years.

This is hardly the first name change for ENRD. It was founded as the Public Lands Division in 1909. It became the Lands Division in 193, and then the Land and Natural Resources Division in 1965. It did not become the Environment and Natural Resources Division until 1990. In each case, the change was made by order of the Attorney General.

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The clergy-penitent privilege has been recognized in American law for more than two hundred years and is now widely enshrined in law across the country. In a recent article in Law and Psychology Review, however, my law school colleague Amos Guiora and co-authors Diana Pogosyan and Matylda J. Blaszczak argue for carving out a significant exception to the privilege. Their article—"Sacred Secrets Enabling Child Sex Abuse"—claims that the privilege "enables" child sexual abuse by allowing clergy to "turn[] a blind eye" to abuse disclosed in a confession. They propose that, to protect children, clergy should be compelled by threat of criminal punishment to immediately call the police whenever a parishioner confesses child sexual abuse, even if doing so violates sincerely held religious belief.

In my response article in the same journal, I take on Sacred Secrets' arguments and defend the privilege. I argue that the privilege should apply in all cases—including those involving child sexual abuse. From my article's introduction:

Sacred Secrets fails to make a persuasive case for its extreme position. Its argument focuses on situations where an abuser has confessed to clergy under the protection of the privilege. But the article neglects to consider whether the abuser would have confessed without the privilege. As this article explains, victims will suffer more if the privilege does not exist. Metaphorically, child sexual abuse occurs in a room behind closed doors— with doors that open only from the inside. Abuse can only come to light if the victim or the perpetrator opens those doors and lets someone else in, whether it be a parent, teacher, peer, policeman—or member of the clergy. Because of age, fear, or the perpetrator's manipulation, many victims are unable to open the doors for themselves. But occasionally a perpetrator opens the doors to confess to his pastor. Sacred Secrets argues that, in such situations, the clergy-penitent privilege should be abolished and the pastor required by law to immediately call the police. But this conclusion begs the question: If the privilege were abolished, why would a perpetrator ever open the doors and confess in the first place? Sacred Secrets' fundamental flaw is its failure to seriously consider that obvious competing concern about its recommendations. Common sense, lived experience, and the available empirical evidence all show that perpetrators will not typically voluntarily confess to a mandatory reporter. Changing the law to conscript clergy listening to confessions into the ranks of mandatory reporters will not serve to bring abuse to light; instead, it will further incentivize concealment.

On the other hand, protecting the clergy-penitent privilege incentivizes disclosure and creates the opportunity for valuable interventions. Clergy can help perpetrators to see the enormous harm from their crimes on their victims, to accept responsibility, and to make changes that will protect children. Clergy can urge perpetrators to self-report, or to notify others (such as a spouse) who can protect victims from further abuse. Notably, clergy can capitalize on the disclosures for the same reason abusers came forward to their pastor in the first place—the abusers feel guilty and want to stop their sinful behavior. To be sure, recognizing the privilege may be a frustratingly imperfect response to disclosures of child abuse. But the decisive point is that this imperfect response is better than the blunderbuss alternative Sacred Secrets proposes—an alternative that is, in any event, likely unconstitutional under the First Amendment's Free Exercise Clause and related doctrines. Thus, the current privilege regime found across this country is the true "victim-centric" approach.

One of the problems in Sacred Secrets is that it fail to situate its arguments in the discussion about privileges more broadly. Privileges exist because the law has long recognized the benefits of certain relationships—e.g., attorney-client, psychotherapist-patient, doctor-patient, and clergy-penitent. But confidentiality is important to obtain those benefits. As the United States Supreme Court has explained in Trammel v. United States, 445 U.S. 40 (1980), such privileges "are rooted in the imperative need for confidence and trust":

The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment.

Curiously, Sacred Secrets makes no effort to engage with this rationale by weighing the costs and benefits of the clergy-penitent privilege. Instead, the article launches allegations that a church invoking the privilege in a child sexual abuse content is "enabling" that abuse. If Sacred Secrets want to trace out the implications of its position within a well-developed body of privilege law, it should have also asked, for example, whether a defense attorney "enables" criminals by invoking the privilege rather than telling police that a client has confessed. Or whether a mental health counselor "enables" an abusive husband by invoking the psychotherapist-patient privilege. The answer is clearly no. Generally, such client confessions occur only because of the assurance of confidentiality. If the clergy-penitent privilege is somehow unique, Sacred Secrets fails to explain why.

You can read my article here. Notably, whatever one thinks of the back-and-forth policy arguments in our two articles, Sacred Secrets' proposal for abolishing the clergy-penitent privilege is almost surely unconstitutional. Last year, a federal district court in Washington state effectively struck down a Washington state statute that would have breached the privilege in child sexual abuse cases—a statute essentially identical to recommendations contained in Sacred Secrets. Thus, my position is not only sound public policy but also required by the First Amendment.

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Some excerpts from Wednesday's long Ninth Circuit opinion in Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen:

Alaska … maintains an internal intranet communication network that it calls Alaska's World. Alaska's World is visible to all Alaska employees, with the company describing it as a "key vehicle for employee communications."

Alaska posts messages on Alaska's World, and employees are invited to reply and comment. Alaska explained to employees that the "[c]omments are here for us to openly and constructively share ideas, ask respectful questions, and understand one another and our company." According to Alaska's employee guidance on posting, "[w]e're a big team, inclusive of many people and perspectives," and "[o]ur differences make us better when we support and respect each other, allowing each of us to be who we are." The company has expressed its commitment to providing "a safe space culture where employees feel empowered to have open and critical dialogue with their peers and leaders." …

On February 25, 2021, Alaska posted on Alaska's World to announce the company's support for the Equality Act. The Equality Act is proposed federal legislation that would extend certain federal nondiscrimination requirements to cover discrimination involving sex, sexual orientation, and gender identity in various contexts…. As was typical for Alaska's World posts, Alaska allowed its employees to comment on the company's Equality Act announcement.

Plaintiffs Marli Brown and Lacey Smith are Christians who worked as flight attendants at Alaska Airlines for eight and six years, respectively…. Shortly after Alaska posted about the Equality Act on Alaska's World, Smith posted in response: "As a company, do you think it's possible to regulate morality?" Smith's comment prompted responses on Alaska's World from other commenters, some of whom expressed disagreement…. Alaska did not initially remove Smith's post but instead decided to respond to it on Alaska's World, [writing] …:

Supporting the Equality Act is not about regulating morality. It's about supporting laws that allow our LGBTQ+ employees and guests, no matter what state they live in or fly to, to be protected against discrimination. Our values are our guide, and we strongly believe that doing the right thing and being kind-hearted require us to support this act. As we said above, we aren't the kind of company that stands by and watches—we're going to use our voice and be a leader on these issues.

We also expect our employees to live by these same values. Our differences are to be respected. As stated in our People Policies, harassment and discrimination will not be tolerated.

In internal Alaska emails discussing this draft, Taylor Ball of Alaska's legal department wrote, "Employees actually do not have the right to believe that LGBTQ rights are 'immoral,'" to which Carmen Williams, Alaska's Vice President of Inflight replied, "I 100% agree."

Later that day, plaintiff Marli Brown independently saw Alaska's post and … felt religiously compelled to post a response[, writing] …:

Does Alaska support: endangering the Church, encouraging suppression of religious freedom, obliterating women rights and parental rights? This act will Force every American to agree with controversial government-imposed ideology on or be treated as an outlaw. The Equality Act demolishes existing civil rights and constitutional freedoms which threatens constitutional freedoms by eliminating conscience protections from the Civil Rights Act. The Equality act would affect everything from girls' and women's showers and locker rooms to women's shelters and women's prisons, endangering safety and diminishing privacy. Giving people blanket permission to enter private spaces for the opposite sex enables sexual predators to exploit the rules and gain easy access to victims. This is Equality Act[.] …

That night, Alaska deleted Brown and Smith's comments on Alaska's World, shut down further comments, and began investigating both plaintiffs. The company subsequently changed its commenting rules to [among other things] … state that comments on Alaska's World should not "express partisan or personal (such as religious or political) opinions." Prior to that change, and referencing correspondence he received from a pilot who was concerned over Smith's and Brown's posts being taken down, Brad Tilden, the retiring CEO of Alaska, expressed concern to Alaska leadership "that we not [c]ensor people for having conservative Christian views." …

Brown and Smith were eventually fired:

In Smith's Notice of Discharge, Alaska based its termination on Smith's violation of the company's anti-harassment and anti-discrimination policies. The Notice of Discharge stated that "[d]efining gender identity or sexual orientation as a moral issue, or questioning the company's support for the rights of all people regardless of their gender identity or sexual orientation, is not a philosophical question, but a discriminatory statement." The Notice of Discharge found that Smith's post "was offensive, discriminatory, and did not align with Alaska Airline's values," and that "we cannot tolerate speech that is discriminatory in nature or targets a group of individuals based on their legally protected characteristics."

Unlike Brown, Smith had a prior disciplinary history, which Alaska referenced in its Notice of Discharge. Less than one year before Smith commented on the Equality Act initiative, she created an online petition entitled "Depoliticizing Alaska Airlines," which opposed Alaska's public support for the Black Lives Matter ("BLM") movement. Smith viewed the company's support for BLM as tantamount to promoting "a specific political party/ideology and creat[ing] bias." Alaska issued Smith a thirty-day suspension for posting the petition and instructed her to take the petition down. Alaska told Smith that any misconduct in the 18 months following her suspension could result in termination. Smith's post on Alaska's World fell within this window….

Both sued under Title VII, claiming the firing was based on their religious opinions, and the Ninth Circuit allowed the claims to go forward:

The fact that Brown was terminated after posting a facially religious statement, by a company (and cooperating union) that understood the religious basis for the post, provides the initial grounding for a genuine dispute of material fact regarding whether Alaska terminated Brown because of her religious beliefs…. [O]ther circumstantial evidence … [also] supports the inference that Alaska may have terminated Brown based on her religious beliefs. Internal Alaska emails showed the company discussing how "[e]mployees actually do not have the right to believe that LGBTQ rights are 'immoral.'" And the change in company policy that Brown's post engendered came only after the CEO expressed concern about "[c]ensor[ing] people for having conservative Christian views."

The communications involving AFA Master Executive Council President Jeffrey Peterson also support Brown's assertions of possible anti-religious bias. Despite AFA's role as Brown's union representative, it is apparent that AFA and Peterson in particular were heavily involved in Alaska's investigation of Brown, perhaps to an unprecedented degree. Soon after Brown posted on Alaska's World, Peterson reported the matter to Alaska management and, critically, wrote to various Alaska executives by text: "I wish fewer people would struggle so much with unifying their faith with inclusivity."

A reasonable jury could conclude that Peterson's comment specifically connected Brown's post to her religious faith, and that it did so in a disparaging way by suggesting an infirmity in Brown's religious beliefs. The same is true of Peterson calling Smith a "bigot" and "bigoted," terms that in the context of this case could be understood as pejorative references to religious beliefs….

Alaska argues that it did not fire Brown for her religious beliefs but because it regarded her as having violated the company's anti-discrimination and harassment policies…. [But] for the reasons we have given, a reasonable jury could find Alaska's position pretextual that [the] asserted finding [of policy violation] was instead motivated by an improper discriminatory reason.

This genuine dispute is underscored … by the Notice of Discharge … set[ting] forth Alaska's reasoning for firing Brown. That Notice referred to Brown as having engaged in "actions that demean and degrade, or are designed to demean or degrade, other employees." A reasonable juror could find that this was an overstated or even inaccurate accounting of Brown's post, which does not discuss Alaska employees. Similarly, the Notice of Discharge asserts that Brown's post was "hateful" and "equat[ed] LGBTQ individuals to sexual predators." [A] reasonable jury could … find this description overwrought or misleading….

There is no dispute that an employer can punish discrimination and harassment, even if it is religiously inspired. But … employers [may not] always avoid further inquiry into their employment decisions under Title VII whenever they hold up a facially neutral company policy as the reason for their decision, because an employee may demonstrate that the reason was pretextual or that unlawful discrimination otherwise motivated the decision….

[M]oreover, this case does not involve direct employee-to-employee harassment. Rather, it concerns a post in response to Alaska's own invitation to share comments that reflect "[o]ur differences"—in this case, as to a piece of proposed federal legislation with which many people may disagree, including on religious grounds.

Indeed, Alaska was fully aware that some would object to the Equality Act for religious reasons. That Alaska created a forum for employee discussion on controversial issues, then fired Brown after she made religious objections of the kind Alaska anticipated, provides a further reason for regarding this case as presenting a genuine dispute of fact on the reason for Brown's termination….

{[Likewise, a]fter initially treating Smith's post as sufficiently legitimate to warrant a measured response from the company on Alaska's World, Smith's Notice of Discharge changed tunes and asserted that Smith's single-line comment, offered in the form of a question, was "offensive" and "discriminatory," going so far as to characterize it as speech "that targets a group of individuals based on their legally protected characteristics." Once again, a reasonable jury could conclude that these descriptions of Smith's post are overwrought or inaccurate, and thus pretextual, especially given that Smith made her comment in an open employee forum in which Alaska invited employees to explore "our differences."} {Nor, in our view, is it plausible that a failure to terminate Smith would have generated hostile work environment exposure for Alaska. See Harris v. Forklift Sys., Inc. (1993) (observing that a hostile work environment is one "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."}

Smith's situation is different than Brown's in several respects. [Some details omitted. -EV] But although Smith's post did not expressly invoke religion, "morality" is often associated with religious beliefs. See 29 C.F.R. § 1605.1 (EEOC guidelines defining "religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views"). "Moral" beliefs about the matters addressed in the Equality Act—which concern sexual identity and orientation—can likewise be understood to include religious beliefs…. Alaska … could have reasonably understood that Smith was invoking beliefs about "morality" that are commonly tied to religion, that is, moral beliefs that are held because of religious convictions….

But we ultimately need not decide how we would have resolved Smith's Title VII claim against Alaska if the facts involved Smith alone…. [T]here is a genuine dispute of material fact whether Alaska discriminated against Brown because of her religious beliefs. And it is apparent that Alaska considered Smith's situation in connection with Brown's, working them up together. [Details omitted. -EV] …

Note that the court's opinion focuses on a straight-up Title VII religious discrimination claim, which is that the plaintiffs were fired "because of their religious beliefs." It doesn't deal with a Title VII religious accommodation claim, which would be that, even if the employer was neutrally enforcing a religion-neutral rule, it had a duty to exempt religious objectors from the rule (unless granting such an exemption would cause an "undue hardship" to the employer). Here's the court's brief mention of the accommodation theory:

Although plaintiffs at times frame their case as one of religious accommodation, that theory is less apt for this case. That theory generally applies when an employee has a religious practice or obligation that conflicts with an employment duty, and where he asks his employer for an accommodation. What we have here is an allegation that plaintiffs were fired because of their religious beliefs, which is more naturally regarded as a straightforward discrimination claim as opposed to a failure to accommodate.

Judge Christen agreed with the analysis related to Brown, but dissented as to Smith, concluding that Smith hadn't "demonstrated a genuine dispute of material fact about whether Alaska terminated her because of her religion."

I expect to blog more in a separate post about another aspect of the case. (This post is long enough as it is.)

Stephanie N. Taub, David J. Hacker, Jeffrey C. Mateer, Rebecca R. Dummermuth, and Tabitha M. Harrington (First Liberty Institute) and Andrew W. Gould (Holtzman Vogel Baran Torchinsky & Josefiak PLLC) represent plaintiffs.

The post "Employees Actually Do Not Have the Right to Believe That LGBTQ Rights Are 'Immoral'" appeared first on Reason.com.

A recent controversy involving Congressman Dan Goldman and a Brooklyn coffee shop seems to me to illustrate a problem that goes beyond public accommodations law, narrowly understood.

According to reports, Goldman visited Poetica Coffee with his young daughter. The shop later posted on social media that, had staff recognized Goldman, they would not have served him. The post objected to Goldman's support for Israel, reportedly refunded his purchase, and told him not to return. Goldman, who is Jewish and known as a pro-Israel Democrat, has since lost his Democratic primary in New York's 10th congressional district to a more progressive candidate. That result does not decide the legal issue, of course, but it does help explain the political context. Israel and Gaza have become intensely divisive issues, especially within the Democratic coalition.

The Department of Justice has announced that it is looking into whether the coffee-shop incident violated federal civil-rights law. The legal question is not straightforward. Public accommodations laws do not require businesses to serve everyone in every circumstance. They prohibit discrimination only on specified protected grounds—one of which is religion. Some jurisdictions protect political affiliation or political ideology in public accommodations as well, but federal law, New York State law, and New York City law do not.

So the legal question, if the matter ever became one, would be how to characterize the refusal. Was the coffee shop objecting to Goldman's political views about Israel and Gaza? Or was it objecting to him as a Jew?Was this political hostility, antisemitism, or some mixture of the two? Those are not always easy distinctions. Views about Israel and Gaza often overlap with Jewish identity, but they are not the same thing. Many Jews disagree sharply about Israel. Many non-Jews strongly support Israel. Criticism of Israel is not itself antisemitic. But sometimes criticism of Israel does cross the line into hostility toward Jews as Jews.

The controversy also raises a broader civic issue. At their best, public accommodations laws reflect an important social norm: ordinary commerce should not become a place where every political and moral dispute gets fought to the end. A customer who enters a coffee shop is not asking the owner to endorse his views. He is asking to buy coffee. Ordinary commerce, in other words, depends on a certain bracketing of disagreement.

One way to think about this is through the old idea of doux commerce— gentle commerce—associated with Montesquieu and the French philosophes. The thought was that commerce could soften manners. It would not make people friends, but it might habituate strangers to deal with one another peacefully despite deep differences.

That norm has been tested in recent years in controversies involving LGBTQ rights and religious liberty. In cases like Masterpiece Cakeshop and 303 Creative, progressives generally emphasized equal access to the commercial marketplace, while religious conservatives argued that the issue was not status but message—not a refusal to serve gay customers as such, but a refusal to participate in expression celebrating a same-sex wedding. The Supreme Court has tried to preserve that distinction: public accommodations laws may prohibit status discrimination in ordinary goods and services, but the state lacks power to compel expression.

That distinction matters here. A coffee shop selling a cup of coffee is not creating a custom wedding cake or website. Selling someone coffee does not endorse his politics, religion, foreign-policy views, or anything else about him.

That, it seems to me, is the deeper point. Public accommodations law is not only a set of technical rules, though the rules matter. It also points toward a norm of civic peace. If every transaction becomes a chance to denounce, exclude, or punish, commerce loses its civilizing function. The coffee shop becomes another arena for total politics. And if ordinary service is reserved only for those whose views we approve, public life becomes impossible.

I discuss the controversy in a new Legal Spirits Short Take.

The post Coffee Shops and Political Combat appeared first on Reason.com.

Brock Fredin, a social media commentator, appeals the dismissal of his diversity action alleging that a journalist … defamed him by reporting on his well-documented history of harassing women and comparing that conduct to his recent criticism of a judicial law clerk in a high-profile legal proceeding….

Fredin … operates an X (formerly known as Twitter) account in which he criticized Allison Greenfield, the law clerk of the state-court judge presiding over a civil fraud case brought by the State of New York against President Donald Trump and others. Fredin accused Greenfield of violating ethics rules, being politically biased against President Trump, and leaking inside information about the trial to reporters. Fredin rose to prominence after President Trump reposted Fredin's criticism on social media and himself criticized Greenfield.

Soon thereafter, a reporter named Adam Klasfeld, who was covering the fraud case, wrote an article in an online publication called The Messenger that exposed Fredin's history of harassing women—all well-documented through court records of restraining orders and criminal charges against Fredin. Klasfeld reported that Fredin had harassed multiple women by creating websites in their names, emailing their employers and colleagues with accusations of criminal conduct, and filing complaints with their professional organizations.

We will later examine the specific statements, but for now it suffices to say that Klasfeld made clear he was relying on court records. Klasfeld, for instance, repeatedly qualified the accusations against Fredin with phrases like "a court found," "court records show," and "[the judge] wrote." Klasfeld compared Fredin's past harassment of these women to his treatment of Greenfield. According to Klasfeld, Fredin filed a bar complaint against Greenfield, reported her to various state agencies and disciplinary committees, and posted on his social media a website (with a URL using Greenfield's name) inviting viewers to criticize her and call for her disbarment….

Fredin sued Klasfeld for (among other things) defamation, but the court held that "[t]he district court did not err by concluding that the reporting was substantially
true":

As best we can tell, [Fredin] faults Klasfeld for disseminating false accusations by his victims. But that argument misrepresents the nature of Klasfeld's article. Klasfeld did not report that he had spoken with the women and repeated their accusations but rather that he was relaying what courts have said about Fredin's interactions with women. By limiting his reporting in this way, Klasfeld inoculated himself from liability. Whether Fredin's accusers are lying—a view rejected by every court to have considered the issue—is beside the point. What matters is whether Klasfeld's characterization of the court documents is substantially true.

The district court did not err by concluding that the reporting was substantially true. A side-by-side comparison of Klasfeld's reporting and the relevant court documents makes this clear:

Klasfeld reported that Fredin "has been hit with 50-year restraining orders barring him from contacting three women."	According to a federal district court in Minnesota, three women "have been awarded 50-year harassment restraining orders" against Fredin. Fredin v. Middlecamp, No. 17-CV-03058 (SRN/HB), 2020 WL 6867424, at (D. Minn. Nov. 23, 2020) (Fredin I), aff'd, 855 F. App'x 314 (8th Cir. 2021).
Klasfeld reported that Fredin "has been criminally convicted multiple times for violating two of those orders."	Another order from that court shows Fredin has twice been convicted of violating those orders. Fredin v. Middlecamp, 500 F. Supp. 3d 752, 765, 767 (D. Minn. 2020) (Fredin II), aff'd, 855 F. App'x 314 (8th Cir. 2021).
Klasfeld reported that Fredin "is currently under criminal investigation for more suspected restraining order violations and possible stalking."	Wisconsin court records show that Fredin was under investigation for stalking at the time of Klasfeld's article and has since been convicted. See Wisconsin v. Fredin, No. 2024CF000209 (St. Croix County).
Klasfeld reported that Fredin "has attacked the targeted women in their professional circles, created harassing websites about them, and filed formal complaints against them, according to court filings."	The federal district court in Minnesota recounts that Fredin has harassed his victims by contacting their colleagues, schools, and professional organizations with accusations of "criminal conduct," "solicit[ing] others to file complaints" against them, and creating websites revealing personal information like home addresses. Fredin II, 500 F. Supp. 3d at 762–67. This behavior warranted restraining orders. Id.
Klasfeld reported that Fredin has filed "retaliatory lawsuits" against his victims.	That same court concluded that Fredin "has used litigation in a bad-faith effort to circumvent the 50-year [harassment restraining orders] issued against him" and noted that state courts have agreed. Fredin I, 2020 WL 6867424, at *10.
Klasfeld reported that Fredin has "openly threatened other courtroom clerks whose judges ruled in favor of one of his victims. 'Remember, each clerk is going to get reported to the Professional Responsibility Board and websites are going up exposing you for your failure to protect,' Fredin wrote in an appellate brief from September 2020."	That same court used nearly the same language: "Fredin has expressly threatened to post websites about court staff and file ethics complaints in retaliation for unfavorable rulings[:] … 'Remember, each clerk is going to get reported to the Professional Responsibility Board and websites are going up exposing you for your failure to protect.'" Id. at *3.

As this comparison shows, Klasfeld's reporting was not defamatory….

The court also wrote:

Fredin also generally challenges the district court's conclusion that Klasfeld was
expressing an opinion when Klasfeld compared Fredin's past harassment to Fredin's criticism of Greenfield. Fredin highlights Klasfeld's references that his criticism "echoes" and "mirror[s]" his "pattern" of "harassing" and "threatening" other women. In Fredin's view, Klasfeld's references conjured notions of criminal harassment, which the district court should have viewed as an actionable statement of fact….

As the [district] court noted, Fredin does not dispute the factual basis for Klasfeld's reporting. Fredin filed a complaint against Greenfield with four disciplinary organizations and mailed the complaint to her judge. He also posted on his social media a website that used Greenfield's name as the URL, branded her a "Democratic Operative and Hack," shared her photo, and called for her to be disbarred. Because Fredin's defamation claim rests on whether Klasfeld came to the correct opinion from disclosed, truthful facts, the claim fails as a matter of law.

The court also rejected other claims Fredin made. Long-time readers of the blog may recall Fredin from my 2018 post Man Forbidden from Identifying Twitter Shaming Activist, Court Order Seems to Say.

The docket also notes:

Our review of Fredin's opening and reply briefs show that Fredin has cited cases, and provided quotes from those cases, that are misleading and even nonexistent…. We issue this order to give Fredin an opportunity to show cause why he should not be sanctioned and to obtain more information from Fredin about his use of generative artificial intelligence in preparing his briefs. Fredin shall respond on or before July 10, 2026, and explain whether any form of generative-artificial intelligence (AI) assistance was used in preparing his Fredin briefs. Fredin shall also provide any additional explanation about his inclusion of inaccurate citations and quoted language that does not appear in cited decisions.

Brian C. Spahn (Godfrey & Kahn S.C.) represents Klasfeld.

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I recently participated in a Federalist Society podcast on Pung v. Isabella County, the Supreme Court's recent badly flawed Takings Clause decision. Deborah La Fetra of the Pacific Legal Foundation (one of the lawyers representing the property owners in the case) also took part. Deborah is a bit more optimistic than me about the ultimate resolution of the case on remand (though I agree with her that the property owners might well ultimately prevail based on the unfairness of the procedures they were subjected to). Regardless, I think we both agree that the Court's decision sets a terrible precedent on the calculation of "just compensation" under the Takings Clause, in cases where the government seizes property due to possible tax delinquencies. I previously wrote about Pung here and here.

I embedded the video of the podcast below:

NOTE: The  Pacific Legal Foundation is also my wife's employer. She, however, is not one of the attorneys on the case. The Pung estate is also represented by other attorneys.

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

New case! The Texas Constitution says that "monopolies are contrary to the genius of a free government, and shall never be allowed." And yet! Waxahachie officials have imposed a monopoly on construction dumpster rentals, handing the market to a big national chain and outlawing honest competition from folks like IJ client American AF Dumpster Rentals. Not so genial if you ask us.

New on the Short Circuit podcast: But what if the police themselves are the emergency?

1. Allegation: Chinese-American IT worker for the State Department is harassed by a diplomatic security officer because of his ethnicity. It culminates in the officer coming to his home, where the officer forcefully grabbed him and then pantomimed pointing a gun at his son while calling the child a racial slur. He sues the gov't under the Federal Tort Claims Act. D.C. Circuit: That all sounds pretty assault-ey to us; lawsuit undismissed.
2. In January 2025, the Trump Administration expanded expedited removal of illegal aliens to the maximum extent allowed by Congress. A due process violation? D.C. Circuit: No. Concurrence: we don't even have jurisdiction. Dissent: Yes.
3. Mom discovers that Skaneateles, N.Y. school had been socially transitioning her child without telling her. She objects, but the school persists, so she sends kid to a private school. District court: Mom lacks standing to challenge the school's policy. Second Circuit (unpublished): She can't seek prospective relief, but she certainly can seek damages, particularly in the wake of the Supreme Court's interim docket decision on the same topic.
4. So, you know those "explanation of benefits" documents that your health-insurance company sends you that you don't read? What happens if they're defamatory—like, what if they tell you that your claim is being denied because your doctor doesn't have a license to practice medicine even though your doctor totally has a license to practice medicine? It turns out, the Third Circuit says, the doctor's defamation claims are preempted by ERISA.
5. In response to several near-fatal overdoses, a Virginia prison institutes a new strip-search protocol—of inmates escorted to a nearly empty videoconference room, that they use one at a time, under video surveillance, that's searched in between uses. An inmate strip searched 26 times in a month sues. Fourth Circuit: Even in prison, this looks like a Fourth Amendment violation. It's nearly impossible to trade contraband in the room, and the policy was based on an unsubstantiated tip. But no need to make any law on that. Qualified immunity!
6. This (unpublished) Fifth Circuit case raises the age-old question: If you can't trust the twin brother to whom you fraudulently deeded your farm in an effort to evade creditors, then who can you trust?
7. In a refreshingly commonsense qualified-immunity opinion, the Fifth Circuit holds that, even if someone is suspected of serious crimes and is squirming around, if he's already handcuffed and detained in a police car then it's clearly unconstitutional to discharge high-velocity pepper spray at his face point-blank thereby blinding him in one eye.
8. Ohio requires social-media companies to obtain parental consent for users under 16. District court preliminarily enjoins the law, concluding it likely violates the First Amendment. Sixth Circuit: Wrong. Opinion 1: Because the law satisfies strict scrutiny. Opinion 2: Because the plaintiff didn't compile the right record for a facial challenge. Dissent: The law is unconstitutional.
9. After Michigan refused to produce unredacted copies of its statewide qualified voter list to DOJ, the feds sue to compel production. Sixth Circuit: Nope. These are surely "records," but they're not records that "came into … possession" of Michigan, because Michigan made them. Dissent: The holding is "inconsistent with our responsibility to 'make sense rather than nonsense out of the corpus juris."
10. Tullahoma, Tenn. alderman who might charitably be described as colorful (e.g., she posed "in front of a Confederate flag with a sign that read, '[w]e go together like cocaine and waffles'") moves out of town. Two citizens pursue a quo warranto action asserting she's no longer eligible for office, and court says she did "just enough" to barely show she intended to reestablish residency. She sues those constituents (and others) claiming First Amendment retaliation. Sixth Circuit: "Surely those citizens have free-speech rights of their own, including the right to challenge on reasonable grounds whether an officeholder meets the requirements of office. … Who, it is fair to ask, is retaliating against whom in this situation?"
11. It takes a lot for a federal court to intervene to stop a state from prosecuting you in state court. So a tip of the hat is due to the Florida Attorney General, who managed to persuade a district court in Illinois that his enforcement action against the American Academy of Pediatrics was such a bad-faith effort to retaliate for the organization's advocacy about gender-affirming care as to warrant a preliminary injunction. Seventh Circuit (2-1): And given the district court's factual findings and all the improvident things the attorney general said on X and various podcasts, we won't stay the PI pending appeal. (Also—and your correspondents are beating a badly putrefied horse at this point—can we all stop calling attorneys general "General" already? Or at least can we be consistent? And start doing the same for the postmaster general? And the comptroller general? And use the rank of "Public" for our local notaries?)
12. In response to FOIA request for files of three immigration detainees, ICE proceeds to spend several years slow-walking and screwing up and then providing inaccurate info to the district court in the ensuing FOIA lawsuit. District judge: I've had it with you clowns. Turn over everything. No redactions allowed. Seventh Circuit: Some of the stuff that was redacted would seem to implicate the privacy rights and interests, not of ICE, but of private citizens and other law-enforcement agencies. It's probably fine if the district court wants to say the agency waived privileges for its own confidential information, but it doesn't make a ton of sense to expose innocent third parties and other agencies to harm, simply because of ICE's foul-ups.
13. Man repeatedly violates no-contact order, resulting in issuance of a writ that triggers a mandatory duty to take him into custody. But Bellevue, Iowa police do not, and he murders his ex. Eighth Circuit: "Courts cannot remedy every wrong."
14. In the 1980s, Alaska Airlines ran an ad where a customer on a rival airline needed 50¢ to use the in-flight bathroom but lacked change. While tapping his feet he progressively offered more and more cash for 2 quarters. A similar over-escalation occurred more recently on Alaska Air's employee intranet message board. In response to the airline's support for federal anti-discrimination legislation, a flight attendant asked, "As a company do you think it's possible to regulate morality?" A co-worker posted a somewhat longer objection. The posts quickly lead to investigation and discharge, with lots of soon-to-be-discoverable texts between company higher-ups demeaning the women. Ninth Circuit: Which makes for a question of fact in their Title VII lawsuit against Alaska Air and the union.
15. The Biden Administration proclaimed the expansion of two national monuments in Utah. The state and a number of state officials sue. Feds: Sovereign immunity! Tenth Circuit: You're only acting in the sovereign's name if you aren't ultra vires. Too bad you are. Dissent: But not ultra vires enough.
16. Mountain View, Colo. firefighter is deeply chagrined to learn that a new recruit has, for religious reasons, requested not to have the American flag emblazoned on his kit. The firefighter, who is also the union prez, proceeds to (it is said) act like a big jerk about it, and for that he is fired. Did it violate due process not to have a post-termination hearing? Tenth Circuit (unpublished): Who can say what process is due? Qualified immunity.
17. Pittsburgh dentist has a years-long affair with his dental hygienist, culminating in murdering his wife on safari in Zambia while staging it to look like suicide. (He can't watch the multitude of documentaries, given his forever-prison sentence, but you can.) As for his paramour, she was convicted of two counts of perjury, among other things, stemming from her testimony to the grand jury investigating the dentist, and is now serving a 17-year sentence. Tenth Circuit: One of the perjury counts has to go: she couldn't and didn't speculate as to the dentist's motives for his generosity, which can't be perjury. Maybe he gave her money for fear of a costly divorce, damage to his reputation, adoration for her children, or another reason. But all the other convictions are solid. Partial dissent: I'd toss the other perjury conviction, too.
18. In which the Eleventh Circuit almost entirely upholds a comprehensive permanent injunction mandating all kinds of changes within Alabama's corrections system, which has a "staggering" number of suicides.
19. Eleventh Circuit: Daytona Beach, Fla.'s panhandling ordinance is unconstitutional, and we affirm the $80k damages award. But each plaintiff needed to establish standing as to each of the 18 provisions they challenged, and none of them have or say they intend to panhandle near ATMs, daycares, public schools, public bathrooms, playgrounds, etc. So those provisions aren't affected by the injunction.

Victory! This week, a federal judge in D.C. struck down a law that barred therapists licensed in other jurisdictions from doing online teletherapy sessions with clients in D.C. During the pandemic, when demand surged, district officials told IJ client Elizabeth Brokamp, who is licensed in Virginia, she could not talk online with any new clients in D.C. But the First Amendment requires that the gov't have a good reason to stop people from talking to each other, and, per the district court, D.C. sure didn't: "After a substantial time for discovery, the District cannot identify any evidence of low-quality care or unethical conduct by unlicensed professional counselors in the District. In fact, the opposite." Click here to learn more.

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Defendant C.H. (Carl) appeals from a … final protective order (FPO) issued against him and in favor of plaintiff J.V. (Jane) pursuant to the Victim's Assistance and Survivor Protection Act (VASPA)….

The parties first encountered each other in February 2023, when Jane, an assistant prosecutor, was assigned to a criminal case charging F.E., Carl's former girlfriend, with third-degree burglary and third-degree theft charges allegedly committed against Carl….

Charges against F.E. for theft were later reduced and charges for violating a final restraining order were dropped, and Carl was upset:

Carl contacted Jane and her supervisors "indicating he was highly offended by the meeting," "unhappy with how the meeting went," and dissatisfied with the manner in which the prosecution was handled…. Jane explained Carl sent emails "multiple times a day" and their tone "became more angry and more accusatory in nature." In particular, Jane testified she received "seventy-six emails in seventy-eight days, some of which were sent on multiple occasions on the same day."

In his emails, Carl said "he had no faith in [Jane's] prosecution of the case," claimed she was lying to him, and stated, "you think you're getting over, but soon you will see," which Jane perceived as a threat against her. Carl also called "[t]wo to three times a day" and thrice appeared at her office without an appointment….

Carl then posted videos on his YouTube channel, "Rescuing Our Communities," that

made general claims of racism against "these prosecutorial and law enforcement systems" and specific disparaging remarks against Jane. For example, in the first video, Carl referred to Jane as a "fat racist prosecutor chick rival to [him] for over a year"; "dumb-ass chick" who was "fucking pathetic"; and "the worst excuse for a prosecutor I'm going after (inaudible)."

In the videos, Carl said, among other things,

Do this to an innocent man (inaudible) and any group of people that would help him, you don't deserve any type of political position. You should pray that I don't get to check on you because anybody who was involved in this, you have made an enemy out of me. You should have left me alone. You should not have violated my rights. You should not have gone after my daughter. If you are involved in this, you can look in my eyes and you will know what I am saying to be true. You and I will have a day….

This prosecutor lied. This by definition is prosecutorial misconduct. If I can prove that I sent her these text messages that a defense attorney cross-examined me to incompleteness and she purposely withheld them, she has a problem. They're mad at me. I don't give a fuck, people. I'm going to get this lady's job. She should not have done this….

So, … over the last couple of days I have cited misconduct by the prosecutor who is allegedly charging [F.E.] in the events that she committed against me. For anyone who has watched that video and watched the evidence I put up, you see definitively that that prosecutor lied.

I have audio of her admitting to it. I have emails. People this lady is done…..

This woman has lied through her teeth and now she's afraid because I have proof that could cost her her job. But people I'm not going to stop. I'm going to file more litigation. I'm going to file the grievances.

The appellate court added that Carl had indeed "filed grievances with state and federal authorities" and had unsuccessfully "asked [Jane's] office to replace her with another prosecutor" fourteen times.

The trial court issued a protective order under VASPA, which allows protective order requests to be filed by (among others) people who allege they were victims of "cyber-harassment," defined to include

conduct that occurs, while making one or more communications in an online capacity … with the purpose to harass another … threatening to inflict injury or physical harm to any person or the property of any person ….

The order, among other things, required defendant to "delete all posts on his YouTube site that refer to Plaintiff" and barred him from "posting, false, derogatory, harassing statements in any form or in any online forum or platform that refer to Plaintiff … by name." (Note that there was no finding by the court that defendant's allegations about Plaintiff were indeed false or libelous.) And the appellate court upheld the order:

[The trial] court first addressed Carl's claim that his statements in the YouTube videos were protected speech under the First Amendment…. Notably, the court … found "[Carl]'s videos [we]re designed to attack [Jane's] property right … her job."

The court thus found … Carl's videos "serve[d] no legitimate purpose," but rather "sought to impugn [Jane]'s character, integrity[,] and professionalism not simply out of spite, but specifically to bring about the end of her employment." The court thus concluded, "Because [Carl]'s videotapes regarding [Jane] served no legitimate purpose, were made and disseminated with the purpose to harass [Jane] and designed to threaten her job, [Carl could] not avail himself of the cloak that is First Amendment protection." …

[T]he court noted for more than one hundred years, our courts have repeatedly recognized "a calling, business or profession chosen and followed[,] is property." Pursuant to its detailed analysis, the court therefore concluded Jane proved the predicate act of cyber-harassment under VASPA….

[T]he [trial] court cited Jane's testimony and found, after viewing the first video, "[Jane] felt harassed and had safety concerns." Further, in its credibility findings, the court noted "[Jane] conveyed a sense of anxiety." The record supports Jane's ongoing fear of Carl at the time of her testimony….

The crux of Carl's argument … is the court erroneously determined Jane possessed a property right in her employment because she was a public "at-will" employee…. [W]e have recently reiterated [that] "[a] calling, business or profession, chosen and followed, is property." …

And though Carl argued that "the trial court's decision violates [his] First Amendment rights by restricting lawful speech on a matter of public concern," the court concluded this "contention[] lack[s] sufficient merit to warrant further discussion in a written opinion."

That seems incorrect to me, for reasons I laid out in Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases). But in any event, the decision struck me as worth passing along. For information on Carl's unsuccessful lawsuits against Jane and others, see this decision (which defendant has appealed to the Third Circuit).

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Earlier this week, the Cato Institute hosted a podcast building on my idea of a potential alliance between libertarians and "abundance liberals." I took part along with Jeremiah Johnson of the Center for New Liberalism. My Cato colleague Ryan Bourne moderated. Beforehand, I thought I might agree with perhaps 70-80% of what Jeremiah would say. But it turned out to be more like 90-95%! I particularly agree with his points about how libertarians should prioritize issues (given that we are unlikely to achieve a fully libertarian state anytime soon, if ever).

I embed the audio below:

Cato also posted links to several pieces relevant to this discussion. I reprint them below:

• Ilya Somin, "Two Cheers for Abundance Liberalism," The Volokh Conspiracy, April 23, 2026 [this is the post that started this discussion].
• Matt Yglesias, "What Libertarians Get Wrong About Freedom," The Argument, May 20, 2026.
• Ilya Somin, "Matt Yglesias on Libertarianism, Abundance Liberalism, and a Possible Alliance Between the Two," The Volokh Conspiracy, May 20, 2026.
• David Friedman, "Libertarians and Abundance Liberals," David Friedman's Substack, May 28, 2026.
• Ryan Bourne, "One and a Half Cheers for Supply-Side Progressivism," The War on Prices, September 16, 2022.

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Happy June 26th everyone, or as I call it, Justice Anthony M. Kennedy Day. On this day in history, Justice Kennedy decided Lawrence, Windsor, and Obergefell. This is a fitting moment to reflect back on the first decade of Obergefell, and look ahead to that precedent's future. My new essay in Law & Liberty is titled Obergefell's Second Decade.

Here is the introduction:

It has become received wisdom by the legal intelligentsia that the Supreme Court is illegitimate. They charge that the conservative justices are engaging in politicized decisions that advance Republican causes, which have no grounding in law. Critics blast the Court for not following procedural regularity and deciding important issues on the so-called "shadow" docket. This mantra is repeated so often that jurisdiction stripping, Court packing, or worse seems like a fait accompli when progressives regain power. Yet, these Court critics seem to have forgotten much of the past century. During the most convulsive days of the Warren Court, progressive elites raised no alarms. Rather, they celebrated as Chief Justice Earl Warren and his colleagues rewrote virtually every aspect of our legal order, from criminal law to religion to sexual privacy to election law and more. And all of this was done without even the slightest pretense of legal justification, beyond the justices' personal preference for what would make a more just society.

Perhaps it is unfair to attack contemporary critics on this front, as they simply were not around during that bygone era. But a ten-year time horizon is fair game. Just over a decade ago, Obergefell v. Hodges (2015) invented a constitutional right to same-sex marriage, without even the slightest pretense of legal justification. To be sure, there were legal arguments that marriage laws amounted to unconstitutional forms of sex discrimination. But Justice Anthony Kennedy, the author of that decision, was never one for legal formalism.

When Obergefell was decided, the same legal intelligentsia that excoriates the present-day Court celebrated Justice Kennedy's ruling, while ignoring the countless faults used to get the case there. Their failure to even acknowledge these problems disqualifies such critics from charging the present-day Court with illegitimacy. This double standard is especially apt for Justices Sonia Sotomayor and Elena Kagan. They joined Justice Kennedy's majority opinion, yet now they have the audacity to criticize their colleagues for opinions that aren't even in the same realm as Obergefell.

The journey to Obergefell took seven fateful steps. First, before there was Obergefell, the Supreme Court was asked to strike down the Defense of Marriage Act (DOMA). But the entire case was a setup. The Obama Administration agreed that DOMA was unconstitutional, but still insisted on enforcing the law so as not to moot the legal challenge. Second, given the lack of adversity between the challengers and the government, the federal courts had no business deciding the case. Yet, the Supreme Court plowed through all procedural hurdles, even while promising the public that this case did not disturb marriage laws. Third, almost immediately after DOMA was gone, federal courts began to strike down state marriage laws. Moreover, these judges did not put their rulings on hold to permit an appeal, so there was a simultaneous race to the altar and to the Supreme Court. Fourth, after some delay, the Supreme Court put same-sex marriage rulings on hold, only temporarily. But the Justices silently allowed marriage laws to fall in a dozen states through the "shadow" docket without the benefit of oral argument or a reasoned decision. Fifth, when the issue finally arrived on the Supreme Court's merits docket, the focus was not on the law, but instead on an issue that was not presented: how children would feel if their gay parents could not get married. The original meaning of the Fourteenth Amendment, ratified in 1868, was irrelevant, as the Justices wielded the greatest act of judicial hubris in American history. Sixth, the outcome in Obergefell was never in doubt. Justice Kennedy had single-handedly built an entire judicial edifice for gay rights on his conception of "dignity." Kennedy issued the three leading decisions about gay rights on the same day over the course of twelve years: June 26. Obergefell was almost certainly timed to coincide with Pride Weekend 2015.

The entire progressive public and private ecosystem united with a single purpose: to bring this case to the Supreme Court's door while making it as hard as possible for a defense to be mounted.

Seventh, and finally, the Court took all of these actions without regard for stare decisis, the venerable principle that the Court should stand by precedent. Justice Kennedy blithely dismissed a ruling from 1971 that (correctly) recognized that the Constitution was silent about same-sex marriage. The precedential value of this case was in doubt, but the deeply rooted tradition of traditional marriage was universal. The Court rejected the received wisdom of countless civilizations from every corner of the globe over the course of millennia. Why? Because of insights revealed over the past two decades by the legal intelligentsia. Stare decisis, apparently, is for suckers.

In Obergefell's first decade, the decision stood as a tribute to judicial supremacy. But in its second decade, Obergefell should be seen as a low-water mark of judicial craft and the measuring stick by which all other decisions should be compared. Anything the post-Trump Roberts Court has done pales in comparison with the contrived legal arguments and procedural shenanigans to constitutionalize same-sex marriage.

And the conclusion:

As we enter Obergefell's second decade, I do not yet see the sort of groundswell of opposition that could lead to the decision's reversal. There is nothing like the five-decade-long backlash to Roe v. Wade, which culminated in the Dobbs decision. On the current Court, only Justice Thomas seems willing to revisit the decision, and even he did not publicly vote to grant review in Kim Davis's challenge to Obergefell. But my purpose here in recounting the path to Obergefell is not to make the case for overruling the precedent. Indeed, even if Obergefell were overruled, the positive laws in nearly every state would continue to protect same-sex marriage. Plus, with virtual wedding officiants, gay couples in all fifty states could easily get married. Despite the fear-mongering from the Court's progressive wing, the world would not look much different in a post-Obergefell world.

Rather, my purpose here is to highlight a painful double standard. When progressives can effect a revolution through the courts, no procedural or substantive rule will stand in the way. Cultural elites will celebrate that ruling and rebut any charges of illegitimacy. And conservatives, perhaps due to their Burkean nature, never even considered retaliation with remedies like jurisdiction stripping or court expansion. But starting in 2018, before the Court issued any landmark conservative decisions, liberals preemptively felt compelled to delegitimize the Court. So when conservative decisions came, the Court was already tainted with the brush of corruption.

Did progressives simply contract a case of selective amnesia, such that the entire run-up to Obergefell was simply forgotten? Or is "legitimacy" merely a function of who stands to benefit from a ruling? The left insists that Roe and Obergefell, which removed contentious issues from the political process, were legitimate. But the left maintains that Dobbs, which restored the contentious issue of abortion to the political process, was not legitimate. In the end, charges of illegitimacy are artificial and merely serve as a means to an end. Obergefell should be held up not only as a tribute to judicial supremacy and hubris, but as the measuring stick for all exercises of judicial legitimacy. Nothing the Roberts Court has done comes even remotely close to what the Kennedy Court did in Obergefell.

There is a lot here, which I hope you take the time to consider. I am also thankful to Law & Liberty for publishing this piece, which takes a strong issue on a contentious issue of social concern.

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From Judge Holly Teeter (D. Kan.) Wednesday in Institutional Shareholder Servs. Inc. v. Kobach:

SB 375 is known as the Proxy Advisory Transparency Act. Under SB 375, a "proxy advisor" is "a person who, for compensation, provides a proxy advisory service to shareholders of a company or to other persons with authority to vote on behalf of the shareholders of a company." "Proxy advisory service" is defined as certain "services that are provided in connection with or in relation to a company, or are provided to any person in this state." This includes "[a]dvice or a recommendation on how to vote on a company proposal or proxy proposal." Charitable organizations and banks that meet certain criteria are excluded from the definition of proxy advisory service….

If a proxy advisor makes a voting recommendation that aligns with the views of company management, SB 375 does not require any action. If a proxy advisor recommends a vote "against company management," whether specifically or as default policy, and that recommendation is not based on a "written financial analysis," the proxy advisor must:

(1) Concurrently with providing the proxy advisory service, include a clear and conspicuous disclosure to each shareholder, or entity or other person acting on behalf of a shareholder, receiving the proxy advisory service that:
(A) Identifies the service being provided;
(B) identifies the recommendation or policy at issue; and
(C) states that the proxy advisor has made the recommendation or policy without basing such recommendation on a written financial analysis regarding the impact of such recommended action on company investors that:
(i) Analyzes the expected short-term and long-term financial benefits and costs to the company regarding the implementation of the company proposal or proxy proposal;
(ii) concludes what vote or course of action is most likely to positively affect shareholder value; and
(iii) explains the methods and processes used to prepare the analysis, including the experience and geographic location of the personnel who formed the recommendation;

(2) provide, concurrently with providing a proxy advisory service under section 3(h)(1)(A) or (1)(B), and amendments thereto, the disclosure under subsection (a)(1) to the board of directors of each company that is the subject of the proxy advisory service; and

(3) while any proxy advisory services are being provided, publicly and conspicuously disclose on the home or front page of the proxy advisor's website a statement that the proxy advisor's proxy advisory services include one or more services that include recommendations or policies against company management on company proposals or proxy proposals that are not made based on a written financial analysis regarding the impact of such recommended action on company investors that:
(A) Analyzes the expected short-term and long-term financial benefits and costs to the company regarding the implementation of the company proposal or proxy proposal;
(B) concludes what vote or course of action is most likely to positively affect shareholder value; and
(C) explains the methods and processes used to prepare the analysis, including the experience and geographic location of the personnel who formed the recommendation.

If a proxy advisor makes a recommendation "against company management" that is based on a written financial analysis, the proxy advisor must:

(1) Concurrently with providing the proxy advisory service, include a clear and conspicuous disclosure to each shareholder, or entity or other person acting on behalf of a shareholder, receiving the proxy advisory service that:
(A) Identifies the proxy advisory service being provided;
(B) identifies the recommendation or policy at issue;
(C) states that the proxy advisor has made the recommendation or policy based on a written financial analysis that:
(i) Analyzes the expected short-term and long-term financial benefits and costs to the company regarding the implementation of the company proposal or proxy proposal;
(ii) concludes what vote or course of action is most likely to positively affect shareholder value; and
(iii) explains the methods and processes used to prepare the analysis, including the experience and geographic location of the personnel who formed the recommendation; and
(D) states that the analysis is available upon request;

(2) make such analysis available within a reasonable time to any client of the proxy advisory service upon request; and

(3) provide, concurrently with providing a proxy advisory service under section 3(h)(1)(A) or (1)(B), and amendments thereto, a copy of such analysis to the board of directors of each company that is the subject of the service.

The court concluded that the law was likely unconstitutional because it was viewpoint-based, relying on Chiles v. Salazar (the case that struck down restrictions on sexual orientation and gender identity conversion therapy):

The Court agrees with Plaintiffs that SB 375 is viewpoint-based on its face because the law draws a distinction based on the message conveyed. If a proxy advisor recommends voting with company management, SB 375 does not require any action by the proxy advisor and the speech is unencumbered regardless of the methodology (or lack thereof) or reasons underlying the recommendation. But, if the proxy advisor recommends voting against company management, SB 375 requires the proxy advisor to either (1) disclose a report that satisfies the statute's definition of "written financial analysis" to the client and the company, or (2) declare to the client, company, and the internet at large that it made voting recommendations not based on a "written financial analysis." SB 375 therefore regulates speech based on whether the expressed opinion is for or against company management….

And the court held that the speech involved wasn't mere "commercial speech," which is more subject to restriction:

"Commercial speech is that which does no more than propose a commercial transaction." Advertising is the most obvious example. A combination of factors distinguishes commercial speech from non-commercial speech. Speech is more likely to be characterized as commercial speech if "(1) it is concededly an advertisement, (2) it refers to a specific product, or (3) it is motivated by an economic interest in selling the product."

Plaintiffs' voting recommendations are not commercial speech. The voting recommendations are not advertisements. Although commercial speech may not be "cabined to advertisements" as Defendant argues, advertisements are the quintessential commercial speech. The recommendations are not referencing a product. The recommendations are not offering a product for sale. The recommendations are the product. Also, although ISS and Glass Lewis offer their services for compensation, that transaction has already occurred before the voting recommendations are made. And the compensation is not for the specific vote, but for the service of providing voting recommendations. The fact that Plaintiffs are compensated for providing voting recommendations does not transform the voting recommendations into commercial speech…. "Commercial speech is speech that proposes a commercial transaction, not speech for profit. Therefore, merely receiving compensation for psychological services cannot be commercial speech." …

Brian C. Fries and Carrie E. Josserand (Lathrop GPM, LLP) and Bruce D. Oakley, Dana A. Raphael, David M. Foster, Jessica L. Ellsworth, and Michael J. West (Hogan Lovells US LLP) represent plaintiff.

The post Kansas Proxy Advisory Transparency Act Likely Violates First Amendment appeared first on Reason.com.

6/26/2013: Justice Kennedy writes the majority opinion in U.S. v. Windsor.

6/26/2015: Justice Kennedy writes the majority opinion in Obergefell v. Hodges.

The post Today in Supreme Court History: June 26, 2003, June 26, 2013, and June 26, 2015 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

On June 25, the Supreme Court decided Wolford v. Lopez, holding 6-3 that Hawaii may not "prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission."  Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett.  Justice Kagan dissented, as did Justice Jackson, joined by Justice Sotomayor.

The Court calls out both lower courts and states that have resisted its Second Amendment jurisprudence.  In the dozen years between McDonald and Bruen, "lower courts rejected nearly all Second Amendment claims based on reasoning that resembled that in Justice Breyer's Heller dissent."  "After Bruen, Hawaii and four of the other five States called out by our decision adopted a new method of restricting law-abiding citizens from carrying firearms for self-defense by flipping the default rule on private property open to the public."  They enacted what has become known as the "Vampire Rule," under which guns are banned on private property open to the public unless a "Guns Welcome" sign is posted or other affirmative consent is given.  As to such signage: "Some proprietors who do not themselves object to entry by carry-permit holders may be reluctant to post a sign welcoming such individuals for fear of alienating other customers."

The same states also enacted "sensitive place" bans in public parks, assemblies, and certain establishments.  As Wolford notes about Hawaii, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited."  While these absolute bans have been challenged, the Court's comments do not bode well for them should they reach the Court. (On the Second Circuit's false historical narrative in Antonyuk upholding New York's place bans, see my exposé here.)

To consider the overwhelming impact of Hawaii's Vampire Rule, the Court lists places that people routinely visit on a daily basis where they cannot be armed, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, "big box" stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats.  A day in the life of a hypothetical Ms. Caetano (based on Justice Alito's concurrence in Caetano) is traced to show the impossibility of asking for actual consent to enter one place after another when armed – the person is already in violation when in the parking lot and when looking for someone with authority to give consent.

At the jurisprudential level, Wolford starkly clarifies the methodology of text first and history second, which are often flipped to uphold infringements.  In determining whether a law clashes with the plain text, three questions arise:

First, does the law apply to "the people"—which is to say, to "all members of the political community"? …. Second, does it concern any form of "Arms," i.e., any weapon customarily used for offensive or defensive purposes? … Third, does the law place any restrictions on either the "keep[ing]" (i.e., possession) or the "bear[ing]" (i.e., carrying) of arms?

Regarding "the people," in the Court's recent decision in Hemani, the Court referred to "the right of 'all Americans' to keep and bear firearms for self-defense."  Curiously, the summary of prior precedents in Wolford does not mention Hemani.  Maybe that's of no significance, as Hemani tested purported historical analogues as applied to the ban on firearm possession by pot users (see my post here) without introducing any new doctrines.  It has also been suggested that Wolford was finalized before Hemani but simply not handed down before it.

Arms "customarily used" for offense or defense, the Court elsewhere noted, "refers to implements used for offense or defense," such as handguns that are (quoting Heller) "overwhelmingly chosen by American society" for self-defense.  Perhaps next Term the Court will grant cert in a case that will confirm how the American people customarily and overwhelmingly choose semiautomatic rifles for self-defense.

Given that Hawaii banned activity that is clearly within the text – "the people" are "bearing arms" – the burden is on the state to justify it by historical tradition.  That entails consideration of the number of jurisdictions that adopted analogous laws, the extent to which they were well-accepted (such as being judicially upheld or being "open, widespread, and unchallenged"), and whether the analogues are "relevantly similar" to the modern law.  That last factor entails "how" and "why" the analogue restricted the right.

For analogues, Hawaii "recounts its long history of antipathy to the private possession of firearms. It tells us that one of the very first written laws of the Kingdom of Hawaii, issued in 1833 by King Kamehameha III, prohibited the possession of all deadly weapons."  That fell flat with the Court, as "the Second Amendment has the same meaning in all parts of the United States…. It cannot give way to 'the spirit of Aloha' in Hawaii [citing State v. Wilson (Haw. 2024)], any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald)."

But most of Hawaii's analogues were colonial or founding laws that prohibited unauthorized hunting of deer or small game on someone else's private property, which flunked both the "how" and "why" tests.  They are not "relevantly similar" to Hawaii's law because prohibiting unauthorized hunting on private land has no relation to banning the carrying of a handgun for self-defense at a gas station or other private property open to the public without express consent.

But "the State's most remarkable analogue" is the 1865 Louisiana statute that made it unlawful "for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor…."  Not only was that law "neither widespread nor widely accepted," it was "part of Louisiana's Black Code" that "provided a tool for disarming blacks and thus leaving them defenseless against attacks."  "Unless we put history entirely out of our minds, Hawaii's claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously."  (For more details, see my amicus brief for the National African American Gun Ass'n.)

Justice Barrett, joined in part by Justice Thomas and Justice Gorsuch, doubled down on the discrepancy between the purported analogues and Hawaii's law, which "does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns."  However, "Mere disapproval of protected conduct is not a valid reason to severely restrict it."

Justice Kagan's brief dissent simply asserts that the historical laws cited by Hawaii sufficed as proper analogues, which "is enough for me to resolve this case, without addressing Bruen's step-one inquiry or the use at step two of Louisiana's Black Code."  Good way to avoid two of the case's sticking points.

Finally, Justice Jackson, with whom Justice Sotomayor joins, dissenting, reminds us once again that, "For what it is worth, I think Bruen was wrongly decided."  As to the analogues, Louisiana's 1865 law and the other Black Code provisions violated the antidiscrimination portion of the Fourteenth Amendment (although the words "equal protection" don't appear in her dissent), but did not violate the Second Amendment.

In so arguing, Justice Jackson quotes General Sickles' 1866 order rescinding South Carolia's Black Code where he stated, "The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed."  She adds that "in his view, no person (of any race) had the right to carry a firearm onto private land without consent."  But Sickles actually said that the right to bear arms "did not "authorize any person to enter with arms on the premises of another against his consent."  That expressed the traditional common-law rule that Wolford upholds, namely that private property open to the public implies a license to enter, absent notice otherwise.

The post Second Amendment Roundup: Supreme Court Decides Wolford appeared first on Reason.com.

In my last post, I explained why today's Supreme Court Second Amendment ruling was right. In this one, I explain why its decision in Mullin v. Doe, the Haitian Temporary Protected Status case, is badly wrong. This case involves a challenge to the Trump Administration's decision to terminate Temporary Protected Status (TPS) for hundreds of thousands of Haitian and Syrian migrants in the US. TPS status protects from deportation migrants who entered the US from countries where conditions such as war, violence, or natural disaster make it dangerous for them to return home.

The Haitian and Syrian plaintiffs argued (and lower courts agreed) that the Trump administration violated various procedural requirements in terminating their status. The Haitians also contended (correctly, as well shall see) that the withdrawal of TPS status in their case was motivated by racial and ethnic bigotry, and thus a violation of the Constitution for that reason.

The constitutional question here is somewhat similar to that in Trump v. Hawaii (2018), where the Court upheld Trump's first-term travel ban barring residents of Muslim-majority nations, despite extensive evidence Trump was motivated by anti-Muslim prejudice and discrimination. But, in that case, the Court ruled that a much lower standard of review applied than would normally be the case, because the context was a policy excluding non-citizens from entering the United States (in previous writings, I have explained why the Court was wrong to apply such a low standard; see here and here).

In this instance, the majority did not address the issue of whether a lower standard of review applies to withdrawal of legal status from migrants already in the US. Instead, Justice Alito's majority opinion concludes the plaintiffs should lose even under normal standards applicable to facially neutral laws and regulations that may have been enacted for unconstitutional discriminatory reasons. This conclusion is badly wrong.

Evidence of anti-Haitian bigotry motivating Trump and other officials involved in the decision is overwhelming. Justice Elena Kagan summarizes some of it in her dissent:

[T]he Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print….

So here are some of those statements. Haitians are "eating the dogs . . . . They're eating the cats. They're eating—they're eating the pets of the people that live [in Springfield, Ohio]." 2 App. 802; see id., at 644. And: Haitians are also eating "other things too that they're not supposed to be." Id., at 698–699. And: Haitians in the United States "probably have AIDS." Id., at 698. And: Haiti is a "shithole country," which is "filthy, dirty, [and] disgusting." Id., at 698–699. And: Haitian immigration is "like a death wish for our country." Id., at 698. And: Haitians, along with some others, are "poisoning the blood" of our country. Id., at 698. And: "Why is it we only take people from shithole countries" like "Haiti [and] Somalia"? "Why cannot we have some people from Norway [and] Sweden?" Id., at 699. The majority briefly replies that those remarks are not "overtly racial," ante, at 21, but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes.

I would add that even if these statements evidence ethnic rather than racial prejudice, the same result follows. Ethnic discrimination is unconstitutional for much the same reason as the racial kind. For example, it is unconstitutional for the government to discriminate against Hispanics, Jews, or Irish, even though these are ethnic rather than racial categories.

Under the Arlington Heights test, which Kagan and the majority both apply, once there is evidence that racial or ethnic prejudice motivated the policy in question, the burden of proof shifts to to government, requiring them to prove they would have adopted the same policy even aside from the these unconstitutional motives. Here, such proof will be difficult to come by, because the evidence is overwhelming that Haiti continues to be wracked by violence, thus making it unsafe for migrants to return there. Thus, there is no good reason to conclude things have actually changed there in a way that makes the TPS designation no longer necessary.

Justice Alito acknowledges that "[p]olitical discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miot respondents—especially those concerning Haiti and Haitian immigrants to this country—exemplify this development." But he nonetheless claims that there is  "a strong, race-neutral explanation of these officials' statements: the
present administration's general stance on immigration" and its general opposition to the use of the TPS program.

The problem here is that this "general stance" is itself heavily infected with racial and ethnic bigotry. Trump and other high-ranking officials have repeatedly engaged in racial and ethnic discrimination in their immigration policies, for example in limiting refugee admissions almost exclusively to white South Africans (an absurd decision that has no plausible non-racial explanation), and in promoting massive racial profiling in immigration enforcement. And it is notable that the President himself repeatedly condemns migrants based on their ethnic and cultural groups. Thus, the "general stance" actually accentuates rather than mitigates suspicions that the Haiti decision was based on discriminatory motives. At the very least, the Court should have recognized there is more than enough evidence to shift the burden of proof to the government.

On the statutory question, the majority relies on a provision of the TPS statute stating that "[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of
a foreign state under this subsection." The majority claims this means there can be no judicial review of any statutory issue here, at all. Justice Kagan's dissent argues that "determination" only covers factual conclusions about the need for TPS status or lack thereof, but not procedural requirements. The latter, she contends, are not really "determinations."

I am not entirely sure who is right on this point, and will not go into this debate in detail. But I will note that, at the very least, both sides have plausible arguments. Under the majority's approach, the executive would have totally unconstrained power to grant or withdraw TPS status to migrants from any country in the world, completely without limit - potentially tens or even hundreds of millions of people! That triggers the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." The unlimited power to grant and withdraw TPS status to millions of people is obviously  of "vast economic and political significance." And here, it is at the very least not completely clear whether the statute actually does that. Thus, MQD required the Court to rule that there are at least some constraints on the power in question.

If the statute really does give the president such unlimited powers, that raises constitutional nondelegation problems. There are at least some constitutional limits to Congress' power to delegate its authority to the president. And if there are any meaningful limits at all, unconstrained power to grant or deny residency and work rights to migrants from anywhere in the world surely breaches those limits. Elsewhere, I have explained why nondelegation principles apply in the immigration context, in part because the Supreme Court has ruled that immigration restriction is a congressional power.

At the very least, the Trump administrations' interpretation of the law raises serious constitutional problems. And that should have triggered the constitutional avoidance canon, which requires courts to interpret federal statutes in ways that avoid constitutional problems whenever it is "fairly possible" to do so.

As far as I can tell, the plaintiffs in the case did not raise major questions and nondelegation issues, though maybe the courts should have addressed them of their own accord (as they do bear on the statutory interpretation issues the plaintiffs did raise). Perhaps they can be addressed in a future case.

The practical implications of today's ruling are dire. Hundreds of thousands of Haitians and others are now subject to deportation. This will predictably cause grave harm to migrants forced to return to horrendous conditions in Haiti, Syria, and elsewhere. It will also harm many US citizens, who can no longer benefit from these migrants' important contributions to key sectors of the economy. For example, thousands of TPS holders (perhaps about 50,000) work as health care providers, and their expulsion is likely to harm patients and residents of elder-care facilities.

For supporters of expanded immigration rights, there is this silver lining to the Court's statutory ruling: under the approach adopted by the majority, future presidents will have virtually unlimited authority to grant TPS status to any and all migrants - totally unconstrained by either procedural or substantive rules.

In a solo concurring opinion Justice Clarence Thomas argues that the Equal Protection Clause of the Fourteenth Amendment only applies to state governments, and thus its protections against racial discrimination don't apply to federal government actions. He further argues that protections against racial discrimination generally do not apply to immigration policy. These points have radical implications that go far beyond the present case. Among other things, they would give the federal government a blank check to engage in racial and ethnic discrimination in immigration policy, and even beyond it. Thomas claims that federal racial discrimination against US citizens is still barred by the Citizenship Clause of the Fourteenth Amendment. But the dominant view at the time the amendment was enacted was that a wide range of racially discriminatory policies were still permissible, even as to citizens. That's one of the reasons why the Fourteenth Amendment had to be adopted in the first place.  Merely granting citizenship was not enough to protect Blacks (or any minority group) against racial and ethnic discrimination.

Sometimes, when Thomas advocates unorthodox ideas unsupported by other justices, he makes excellent points, as with his positions on a number of federalism and property rights issues. Other times, not so much. This is one of the latter cases. If time allows, I may have more to say about Thomas's opinion later.

In sum, this is a bad decision that is likely to have bad real-world effects, at least in the short run. In the long run, some of the effects might cut the opposite way - giving more pro-immigration administrations an opportunity to grant TPS  status without any limitations. But that possibility doesn't justify what the Court has done.

The post The Supreme Court's Badly Flawed Ruling in the Haiti TPS Case appeared first on Reason.com.

I am one of the few people who believe the Supreme Court was very right in its Second Amendment ruling today, in Wolford v. Lopez, but badly wrong in its ruling allowing abolition of TPS status for Haitian migrants in Mullin v. Doe. Both majority opinions were written by Justice Alito; but he did a way better job in one than in the other. In this post, I assess Wolford. I will try to cover Mullin v. Doe later.

In Wolford, the Court struck down a Hawaii law that barred people carrying guns from entering private property "held open to the public" unless they had specific permission from the owner. In a 6-3 decision divided along ideological lines, the Court held the law violates the Second Amendment right to keep and bear arms. The conclusion is right.

Elsewhere, I have argued that red-state laws requiring property owners to allow guns on their land violate the Takings Clause of the Fifth Amendment (see here and here). Private property owners have every right to exclude people who carry guns from their property, just as they also have a right to exclude people for any number of other reasons. But the Hawaii law goes far beyond merely allowing property owners to exclude bearers of guns. It singles out the exercise of a constitutional right for a legal presumption of exclusion. And here I would emphasize that the Second Amendment protects not only the right to own arms, but also the right to "bear" them. Such bearing is often useful for self-defense, particularly in high-crime areas.

Most people would readily agree such a targeted presumption of exclusion is us unconstitutional when it comes to other constitutional rights. As Justice Amy Coney Barrett points out in her excellent concurring opinion, "What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny?" We can easily extend the analogy. If the state enacted a law barring people who criticize the president or the state's governor from private property without specific permission from the owner, that would be a violation of the Free Speech Clause. If the state barred the use of contraception on private property  (e.g. - hotel rooms) without getting specific permission from the owner, that would be a violation of the right to contraception protected by Griswold v. Connecticut (1965). And so on.

As Barrett notes, this point disposes of Justice Ketanji Brown Jackson's main argument in the principal dissenting opinion (joined by Justice Sotomayor): "that Hawaii's law does not restrict the right to carry a gun at all. Instead, its law vindicates its resident's property rights by operating on the scope of the implied license to enter." The state cannot manipulate those default rules to deliberately disfavor the exercise of a constitutional right. If a state law banned critics of the president or people wearing religious garb from entering private property without specific permission, I doubt Justice Jackson would such a law "does not restrict First Amendment rights at all."

There is also an extensive debate between the majority and the dissent about whether the Hawaii law meets the "history and tradition" test outlined in the Court's 2022 ruling in the Bruen case, which held that gun control regulations can be upheld if they are sufficiently analogous to historically prevalent laws. On balance, I think the majority and Justice Barrett are right to emphasize that most of these laws were narrower than the Hawaii law, and had narrower purposes (e.g. - controlling poaching). But I agree with Justice Jackson that this whole exchange demonstrates - yet again- that the "history and tradition" test is badly flawed, and too easily manipulable. While she thinks the manipulation goes only towards invalidating too many regulations, I think it could just as easily go the other way (or would, if the Court had a liberal majority). Indeed, her own arguments in this case demonstrate how that could happen.

As I explained in my post about the recent Hemani case, the best solution to this problem is to junk the history and tradition test, and replace it with one focused on the text, original meaning, and purpose of the Second Amendment. On that approach, a categorical presumption against bringing guns into any private property "open to the public" pretty obviously has to be struck down. Note that the presumption applies regardless of the type of gun, regardless of whether the owner is doing anything dangerous with it, and regardless of the type of property. That makes it a severe imposition on the core constitutional right to bear arms, and not one that can be justified by any kind of narrowly targeted safety concerns. Things might be different if the law were limited to, e.g., situations where the owner brandished the gun in a dangerous manner.

Part of the debate between the majority and dissent focuses on the notorious Black Codes enacted by southern states after the Civil War, for the purpose of oppressing recently freed slaves and other Blacks, which in this case included restrictions on carrying guns, so as to disarm Black people and render them more vulnerable to coercion by whites.  Hawaii and Justice Jackson argue that these laws are appropriate analogues to the current Hawaii law, thereby justifying the latter.

I think it obvious that laws which are themselves unconstitutional (because engaging in blatant racial discrimination) cannot serve as justifying analogues for anything. Indeed Justice Jackson recognizes the Black Codes were unconstitutional, but argues that they might still serve as part of the relevant "history and tradition," because racial discrimination has a long history and was traditional, and because the unconstitutionality here may have been under the anti-discrimination provisions of the Fourteenth Amendment, not the Second Amendment.

I think a law intended to disarm a racial minority pretty obviously violates the Second Amendment, as well as other constitutional provisions. If the mere fact that many states enacted such laws makes them permissible under the "history and tradition" test, that's just another strike against that test. But even within the framework of that test, there is every reason to exclude regulations that are unconstitutional under other provisions of the Constitution (and therefore should never have been allowed to become "traditional" in the first place). Ditto for regulations intended to undermine the central purposes of the Second Amendment, by making people more vulnerable to government and private oppression.

A good rule of thumb is that if defending the constitutionality of a law requires arguing that it is similar to the Black Codes, that probably means the law is actually unconstitutional! And if your test for determining constitutionality gives positive (rather than negative) weight to similarity to the Black Codes, you should junk that test and use a different one.

The post Guns, Property Rights, and the Second Amendment appeared first on Reason.com.

On June 18, the Supreme Court decided United States v. Hemani. The case was 9-0, though was fragmented. Justice Thomas concurred, finding that possession statute exceeded Congress's powers under the Commerce Clause. Justices Jackson and Sotomayor repeated their view that Bruen was wrongly decided. And Justices Alito and Kagan concurred in judgment, though I still am not entirely sure what they disagreed with the majority about.

Today, the Supreme Court decided Wolford v. Lopez. There was a time when we had to wait more than a decade for the Supreme Court to decide a Second Amendment case. This year, we get two victories in the span of a week! Here, the Court split 6-3, finding that Hawaii's "vampire" law violates the Second Amendment.

Justice Alito, who did not join Hemani, wrote the majority opinion in Wolford. Part I of Alito's opinion offers an extremely thorough, nine-page discussion of Heller, McDonald, Bruen, and Rahimi. This is a perfect capsule summary to teach students about how the doctrine has developed since 2008. But something very significant is missing: Hemani. Indeed, Justice Alito writes that Rahimi was "our most recent Second Amendment case." What about Hemani, decided seven days ago? Alito does not cite Hemani at all. But Justice Barrett's concurrence and Justice Jackson's dissent does cite Hemani.

What's even stranger is the sequencing. Justice Alito's opinion should have been released first, as it laid out all of the Second Amendment doctrine, and then Justice Gorsuch's opinion could have come out second, and cited back to Alito. But Hemani came out first.

Something feels off here. Maybe Wolford was supposed to come out first, but the Chief wanted to force out the 9-0 Hemani to send a signal of bipartisanship, so the ordering was flipped? I don't like that theory as there were no other blockbusters last Friday. I don't think the majority opinion flipped in Hemani. The only person who didn't write from that sitting was Justice Thomas, and his view on the Commerce Clause was never going to command a majority.

I can't quite put my finger on it, but something happened with Hemani and Wolford.

Update: Is it possible that Justice Barrett may have lost the majority opinion in Wolford? Justice Alito's majority opinion is 24 pages and avoids any major traps concerning property law. It is neat and clean, and offers a cogent summary of all the case law. Barrett's 14 page concurrence gets into the weeds of scrutiny. Barrett only brings along Thomas and Gorsuch for Part II-B. I can see Roberts thinking this opinion about property law reads like something a law professor would write (it is), and jumping ship to the safe harbor of Alito. Even now, the Barrett concurrence covers much of the same ground as the Alito majority. And she responds often to the Jackson dissent, as a majority opinion would. Barrett did not write an opinion for January when Wolford was argued. There were seven cases that sitting, so Alito may not have had an assignment.

This theory still doesn't explain why Alito didn't acknowledge Hemani. Something is up.

Update #2: Justice Alito's concurrence cites Molly Brady's Stanford Law Review Article as "forthcoming 2026" with a parenthetical of ("last revised Feb. 27, 2026") followed by a permalink, which was created on June 4, 2026 at 8:47 am. The permalink was also made private, which usually happens in the case of a copyright violation.

Alito's other permalinks were created on Monday, May 25, 2026 at 10:18 pm, 10:19 pm, 10:42 pm. Glad to see the Alito clerks are burning the midnight oil.

The reply brief was filed on January 9, and the case was argued on January 20. This citation was clearly created by the Alito chambers at some point after the case was argued. Brady's article was published in April 2026. Barrett's concurrence and Jackson's dissent both cite Brady's article in its final, paginated form. Barrett also includes permalinks, which were created in 2025, likely by the parties.

I don't know what this means, but the timeline suggests Alito's opinion was written earlier, but finalized later.

The post Something Feels Off About <i>Hemani</i> and <i>Wolford</i> (Updated) appeared first on Reason.com.

Today the Trump Administration completed its clean sweep of the non-birthright-citizenship immigration cases at the Supreme Court. Some of these decisions are quite significant. This highlights that the current Court is quite sympathetic to aggressive executive branch action in the immigration sphere--aggressive action often expressly authorized by Congress--even if it is likely to reject the Administration's unlawful attempt to unilaterally rewrite the law of citizenship.

The first immigration decision today was Mullin v. Al Otro Lado, in which the Court held, 6-3 in an opinion by Justice Alito, that an alien seeking to enter the United States from Mexico does not "arrive in the United States" unless and until the alien actually enters the country. This matters because an alien cannot apply for asylum until arriving in the country, and thus allows the federal government to turn away potential asylum applicants before they may seek asylum.

The second immigration decision today was Mullin v. Doe, in which the Court held, again 6-3 in an opinion by Justice Alito, that the statute authorizing "Temporary Protected Status" bars judicial review of non-constitutional claims challenging the revision or rescission of such status. Finding the sole constitutional claim raised in the litigation unlikely to succeed, the Court vacated the district court order postponing the termination of temporary protected status for aliens from Syria and Haiti pending legal challenges to the termination.

On Tuesday, the Court decided Blanche v. Lau, another 6-3 decision (this one by Justice Thomas) concluding that the Immigration and Naturalization Act does not require a border officer to have "clear and convincing evidence" that a lawful permanent resident has committed a crime of moral turpitude before deeming that individual an "applicant for admission" when re-entering the country. Thus a lawful permanent resident who has committed such a crime, but has not yet been convicted, can be required to reapply for admission after temporary foreign travel. (In this case, Lau had been charged with trademark counterfeiting but was still awaiting trial.)

Not all of the Trump Administration's immigration victories were 6-3, however. Earlier this spring the Administration prevailed in Urias-Orellana v. Bondi, in a unanimous opinion written by Justice Jackson. Here the Court concluded that the INA requires application of the fairly deferential substantial-evidence standard to the government's conclusion as to whether a given set of undisputed facts rises to the level of "persecution" for asylum applicants. (The applicants had advocated for de novo review.)

The Court also sided with the Trump Administration in its per curiam opinion in Margolin v. National Association of Immigration Judges, rejecting the U.S. Court of Appeals for the Fourth Circuit's attempt to bypass the channeling requirements of the Civil Service Reform Act (based upon issues the parties had not even raised).

Taken together, these opinions show that the current Court is quite willing to embrace broad assertions of executive power over immigration policy, particularly given the expansiveness with which Congress has delegated such authority. It also shows the Court interpreting statutes narrowly, and without regard for broader policy considerations--considerations a majority of the justices believe are for Congress to resolve.

This string of immigration law victories is unlikely to extend to the birthright citizenship case, which should be decided next week. In that case, the Trump Administration is attempting to rewrite the law of citizenship unilaterally. Even if one is sympathetic to the Administration's constitutional argument (and I am not), it is hard to argue that the EO is consistent with the longstanding interpretation of the applicable federal statute.

While Section 1401 echoes the language of the Fourteenth Amendment, it should be interpreted in line with the public understanding of those words at the time it was adopted (Cf. Justice Alito's Bostock dissent), and such an interpretation is wholly incompatible with that offered by the Trump Administration. Thus even if one thinks the conventional interpretation of the citizenship clause is mistaken, Section 1401 would control. So, just as the Court has hewed closely to what Congress has authorized in the immigration cases already decided this term, it should reject the Administration's birthright citizenship arguments on statutory grounds.

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There were no cases decided today from December. I still think the Chief Justice has Trump v. Slaughter. Now that Alito has six opinions for the term, I think he is done. Justice Kavanaugh almost certainly has NRSC v. FEC. But if Alito has NRSC, then my theory about his losing the majority in Hamm fails.

Today the Court decided Wolford from the January sitting. Alito wrote the majority opinion. Outstanding are the two transgender sports cases and Cook. So far, Roberts, Gorsuch, and Kavanaugh have not written from that sitting. I think Gorsuch is done for the term with seven majority. My thought on Tuesday was that Barrett, a former student athlete, would write both athletics cases while the Chief writes Cook. (Clarification: Barrett did not play college sports, but did participate in track and field in middle school.) But maybe Roberts may write the transgender cases, as he wrote Skrmetti. Then, Justice Kavanaugh may write a "The Fed is different" opinion for Cook.

The February sitting is done.

No new cases today were decided from March. I still think Roberts has Barbara. I wrote that Alito has Watson, but he wrote Al Otroe Lado from that sitting. I think it unlikely that Justice Thomas has the majority in Watson, so the election case will likely go to Justice Barrett. I'm not sure how ACB votes here, so it is a tossup.

For April, my prediction on Monsanto was completely wrong. I thought there might be a shot the plaintiffs win, but it wasn't close. They only got Gorsuch and Jackson. Justice Kagan has Chartie. It should be a fun Fourth Amendment case to read.

There are seven remaining cases. We know there is a session on Monday, and maybe the Court will wrap up on Tuesday to avoid spilling into July.

May the odds ever be in your favor.

The post Revisiting My Authorship Predictions And Making More Predictions appeared first on Reason.com.

A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

This episode features a conversations with Brian Soucek, of UC-Davis Law and the AAUP. Brian has been a leading scholarly critic of the new wave of a institutional neutrality policies and defender of the compatibility of DEI policies with academic freedom commitments. He now has a new book that brings those themes together in The Opinionated University: Academic Freedom, Diversity, and the Myth of Neutrality in American Higher Education.

In the new podcast episode, we discuss the mission of the university and its relationship with academic freedom, diversity initiatives in universities relating to faculty hiring and promotion, and institutional speech by university leaders and faculty bodies such as university departments. I've been on the opposite side of Brian on many of those issues, such as institutional neutrality and diversity statements. A useful and enlightening conversation. Give it a listen here.

The post Academic Freedom Podcast Returns appeared first on Reason.com.

1. City violated RC 4117.11(A)(1) when Fire Chief yelled at, physically threatened, uttered racially oriented names (i.e., "punk ass white boys"), and accused Union President and Vice President of being "racist" when they requested information about, and demanded to bargain over, effects of offering EMT class to bargaining unit employees, constituting restraint and coercion in exercise of rights guaranteed to them.
2. City violated RC 4117.11(A)(1) when Mayor publicly labeled two Union leaders as being racist for engaging in lawful actions, likely causing reputational harm, and restraining their continued protected activity.
3. City violated RC 4117.11(A)(3) when Mayor condoned Fire Chief's conduct and ratified his views in media. More likely than not, this led to negative characterization of Captains by at least one citizen and at least one Union member. This, in turn, caused each official to have to defend his reputation for merely exercising his duty as Union officer. This reputational harm constituted a change in conditions of employment for Union President and Vice President, because Mayor's conduct specifically harmed their protected right to maintain their good reputation….

The relevant statutory provisions, from Ohio Rev. Code 4117.11, read:

(A) It is an unfair labor practice for a public employer, its agents, or representatives to:

(1) Interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Chapter 4117. of the Revised Code or an employee organization in the selection of its representative for the purposes of collective bargaining or the adjustment of grievances; …

(3) Discriminate in regard to hire or tenure of employment or any term or condition of employment on the basis of the exercise of rights guaranteed by Chapter 4117. of the Revised Code….

The Board adopted the proposed order from Administrative Law Judge Raymond Geis, which concluded in part:

Respondent sent an email to all employees announcing that an emergency medical technician "EMT" class would be offered to all firefighters. Respondent did not share any information ahead of time with the Union about the class before the general announcement. Sign-up for the class was voluntary. Then-Union President Racco and Vice President ("VP") Thomas requested a meeting to discuss the EMT class offering and discuss how it may affect the firefighters' terms and conditions of employment. During a September 6, 2024, meeting, the Union demanded to bargain effects of the EMT class offering including, inter alia, scheduling/sign-up, compensation for attendance, and compensation for members filling in for attendees' regular posts.

In response, Respondent's agent, Chief Finley, called the Union Leaders 'punk ass white boys' and 'little white bitches,' said that he was 'tired of you white boys,'. He accused the Union Leaders of only wanting to negotiate because Chief Finley was black, and accused the Union Leaders of being racist, then proceeded to state, 'I am so tired of you white boys constantly coming after me for no reason and it just never stops,' After VP Thomas responded that he was not a racist, he told VP Thomas, '[y]ou know who always says that, a racist.'

Chief Finley further stated that he didn't have to bargain anything about the EMT class because it was voluntary. Chief Finley was yelling his comments and stood up across the table in a manner reasonably perceived to create an apprehension of assault. It took two deputy law directors to get the Chief to leave the room. This demonstrates that the Chief lost emotional self-control, without legal provocation, during a legitimate collective bargaining meeting.

Respondent's Mayor ratified Chief Finley's conduct when he spoke with a reporter for The Vindicator and in the resulting article, stated that the union leaders disrespected him as "an African-American fire chief", and by stating "there's some racial issues there" and indicating the white union officials don't recognize that they are being racist toward him….

Neither Racco nor Jordan ran for reelection to their Union officer positions due in substantial part to reasonably perceived reputational harm from media coverage of the dispute exacerbated by the Mayor's comments. The Mayor's comments to the The Vindicator effectively excused Chief Finley's conduct during a bargaining meeting and falsely labeled the Union as racially prejudiced because it sought relevant information and demanded to bargain with Respondent (even though these acts constituted lawful exercise of its rights guaranteed under R.C. 4117)….

[T]he record conclusively establishes that the Chief's conduct overwhelmingly steered the meeting off course and undermined any possibility of sharing information and/or reaching agreement. Chief Finley's comments standing alone are inherently coercive and are reasonably calculated to frustrate collective bargaining and/or assertion of collective bargaining rights.

The Mayor's public justification of Chief Finley's conduct and ratification of his view that the union leaders were being "racist" was discriminatory toward Racco and Thomas solely due to their status as Union officers. But for the men's role as union representatives asserting protected rights on behalf of those they represent, their reputation would not have been besmirched by Chief Finley or the Mayor. These Union men's terms and conditions of employment uniquely suffered because their legal right to maintain their reputation was infringed without cause, while no other employees faced a similar degradation.

These events caused Racco and Thomas to reasonably perceive harm to reputation such that neither man sought reelection as a Union officer. The current Union president credibly testified to difficulties in recruiting members to fill the ranks of its executive board due to members' perceptions of how Racco and Thomas were treated.

This chilling effect upon recruitment and participation of bargaining unit members as Union officers was a reasonably foreseeable consequence of the mayor's public ratification of Chief Finley's views and his conduct in response to the Union's legal assertion of its protected legal rights. The Mayor and Finley committed per se violations of R.C. 4117.11 by, in effect, stating the Union and its leaders were racist for requesting information and demanding to bargain. This was done in spite of the fact that R.C. Chapter 4117. confers rights by one's status as a public employee (or public employer) without regard to race - period….

And the board ordered the city to, among other things,

Refrain from yelling at union officers, making physically threatening gestures toward union officials, making racially oriented insults toward union officers, and accusing union officers of racism during meetings and communications which specifically arise from the statutory obligation to bargain in good faith ….

I'm not sure this is correct as a matter of labor law, or consistent with the Mayor's First Amendment rights as an elected official to express his views (see Bond v. Floyd (1966)). But in any event I thought it worth noting; for a post about a loosely similar case, see Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic?

For more on the story, see the Vindicator (David Skolnick).

The post Mayor and Fire Chief Calling Union Leaders "Punk Ass White Boys" and "Racist" Was Labor Law Violation appeared first on Reason.com.

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When applying Fourth Amendment doctrine, to what extent can race and ethnicity be considered? The Supreme Court denied cert on Monday in United States v. Carter, a case on this question—specifically, on whether the Fourth Amendment test for whether a person is "seized" factors in the person's race.  There's an interesting connection between this issue and last fall's debate over the role of race in immigration stops, raised in Noem v. Vasquez Perdomo. I thought it might be worth flagging the potential connection, and to ask about ways to distinguish how the law approaches them.

Here's the context.  Carter asked the Court to resolve a longstanding open question in Fourth Amendment law: When applying the Fourth Amendment test for when a person is seized—whether a reasonable person in that situation would feel free to terminate the encounter and leave—does the suspect's race matter?  There's a split among lower courts. Some courts say that there is one reasonable person standard for people of any and all races.  Other courts say that people of different races tend to have different experiences with the police, and that those different experiences can can lead to a different sense of when they are free to leave. Under the first approach, race is irrelevant; under the second approach, race is relevant.

Justice Alito dissented from the denial of certiorari, joined by Justice Thomas.  Justice Alito's dissent raised the question of whether a broader commitment to a color-blind Constitution answered the question in Carter:

We have said that our "'Constitution is color-blind.'" Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 230 (2023). It "almost never" allows government actors to treat persons differently based on their race. Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 17). And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a "perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike." Shaw v. Reno, 509 U. S. 630, 647 (1993). It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not. See Buck v. Davis, 580 U. S. 100, 119 (2017).

Perhaps the [lower court's] test has legitimate justifications. In any event, it is important, and it warrants this Court's review. I therefore respectfully dissent from the denial of certiorari.

I don't take Justice Alito to have answered the question of whether a commitment to a color-blind Constitution requires saying race is irrelevant to the seizure analysis, as he was just flagging the question as important and cert-worthy (which seems right to me).  Still, Justice Alito's opinion suggests at least that it might do so.  And that view has surfaced in some of the lower court caselaw, such as Judge William Pryor's opinion in United States v. Knights, 989 F.3d 1281, 1289 (11th Cir. 2021).

Which brings me to my question: If you believe that a commitment to a color-blind Constitution answers the question in Carter, does it also answer whether race can be used as a basis for cause in making a stop for immigration violations, one of the big questions debated last fall when the Court was considering in Noem v. Vasquez-Perdomo?

As you may recall from Noem, one of the issues involved in reviewing that injunction was the use of race and ethnicity to temporarily stop people for immigration violations, which was a major question in light of ICE enforcement activities.  That wasn't a new issue in Fourth Amendment law, to be clear.  Back in 1975, in United States v. Brignoni Ponce, the Court had held that a person's perceived Mexican ancestry was relevant to whether to stop them for a possible immigration violation but not enough cause on its own.  Brignoni Ponce concluded: "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens."

In Noem, last fall, that holding was relied on in parts of Justice Kavanaugh's concurrence explaining his vote in favor of the stay of the district court's injunction.  That led some to treat Justice Kavanaugh's opinion as the source of that approach, although I think it goes back to 1975 and Justice Powell's opinion for the Court in Brignoni Ponce (which was joined by Justices Marshall and Brennan, among others).  And although this isn't a post specifically about Justices Alito and Thomas, it's perhaps worth flagging (given their dissent on Monday in Carter) that we can't be sure that they agreed with Justice Kavanaugh's reliance on Brignoni Ponce for the stay in Noem, but that it seems at least plausible to surmise that they did.

The broad question I want to flag is whether there is a principled basis for saying that the color-blind Constitution forbids use of race in the Fourth Amendment seizure test in Carter, but that it allows use of race in Fourth Amendment doctrine in determining if there is cause to seize someone in a case like Noem.  And consider the flip side of it, too: Is there a principled basis for saying that the color-blind Constitution allows use of race in the Fourth Amendment seizure test, but that it forbids use of race in Fourth Amendment doctrine in determining if there is cause to seize someone?   More broadly, does the answer to whether the doctrine can account for race, and derive different answers based on race, have to be the same in these two doctrinal contexts?

To be clear, I think there are entirely plausible arguments for getting to different answers in these two contexts internally to Fourth Amendment doctrine.  Doctrinally, the reasonable suspicion test is empirical, and the seizure standard is an objective test.  The two tests occupy different doctrinal space, and they serve different functions.  It's entirely plausible that race would be relevant in one setting but not in the other just as a matter of "normal science" working through the doctrine.

The issue flagged by Justices Alito and Thomas in Carter strikes me as broader, though.  They seem to be asking not just what is the right answer as a matter of Fourth Amendment doctrine, based on the particular tests at issue, but rather suggesting that the Constitution has a broader color-blind commitment that cuts across doctrines and makes reliance on race when applying constitutional tests problematic generally.  My question is, if you use that premise as your starting point, do you have to come to the same answer in Carter and Noem?  And if not, how do you distinguish the two contexts?

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Landor v. Louisiana Department of Corrections and Public Safety is an unexpectedly significant case. I thought this was going to be another unanimous religious liberty case like Holt v. Hobbs or Tanzin v. Tanvir, where the conservatives and liberals unite to rule for a non-Christian plaintiff. (Ramirez v. Collier was 8-1, with only Thomas in dissent.) My prediction about Landor was very wrong. The final vote was 6-3. Justice Gorsuch wrote the majority opinion for the six conservatives, ruling against the Rastafarian whose dreads were cut off. Justice Jackson wrote the dissent for the three liberals, finding that RLUIPA permits monetary damages against the prison guards.

As I read through opinion, and thought about the assignments so far, I speculated that something changed. I think Justice Jackson may have been assigned the majority opinion, with Justice Gorsuch in dissent, and the vote flipped at some point after the transgender sports cases were argued. Here is my evidence.

First, in the November sitting, nine cases were argued. Justice Gorsuch had two majority opinions (Landor and Rico), while Justice Jackson had none. Justice Barrett had two related cases (Fernandez and Rutherford), while Justice Kavanaugh had none. I can see the Chief Justice giving Justice Jackson the majority opinion to signal how the Court is unified on a religious liberty case. Moreover, Justice Gorsuch has seven majority opinions for the term, more than anyone else.

Second, all of the other November cases were decided at least a month ago. Justice Gorsuch's majority opinion in only 18 pages, compared to Justice Jackson's 33 page dissent. There were no other separate writings. A majority opinion of this length should have been ready some time ago, not the penultimate week in June. Something has been in the works.

Third, Justice Jackson's dissent gives off a majority opinion vibe. She has a lot of detailed historical research that may not have been needed in a dissent. It is also, as noted above, nearly twice as long as the majority opinion. Jackson also responds to the majority opinion in footnotes. That seems backwards, as usually the majority opinion comes first. These opinions, I think, were written outside the usual sequence.

Fourth, Justice Gorsuch's majority opinion connects RLUIPA with the pending Tile IX case:

On Mr. Landor's theory, Congress could require coaches at universities that receive federal funds to permit transgender athletes to play women's sports—or face personal liability in suits for damages.

Justice Jackson points out that this line relates to West Virginia, which was argued in January.

The majority warns that, if RLUIPA's individual-capacity damages provision is constitutional, Congress could subject college coaches to liability if they refuse "to permit transgender athletes to play women's sports," or make doctors personally liable if they "administe[r] certain vaccines to children." Ante, at 13. What the majority intends by these examples is not clear. Congress could of course impose these conditions on the colleges and medical practices themselves, assuming they receive federal funds and the laws are otherwise constitutional and not coercive.[FN11]

[FN11] 11A Title IX case currently pending before us asks whether Congress imposed the majority's first "hypothetical" condition on federally funded educational institutions. See West Virginia v. B. P. J., No. 24–43.

I wonder if something is brewing in the Title IX case that helped flip Landor? Maybe Justice Gorsuch recognized that allowing damages under RLUIPA could allow the transgender athletes another way to sue coaches. My guess is that sometime after January, the majority flipped. That chronology would make sense of the timing for an end-of-June drop.

Fifth, I can see how Gorsuch persuaded several of his colleagues to jump ship based on the merits. One of the most consistent projects of the Roberts Court is to constrain causes of action. Just this term, the Court clawed back on causes of action in Exxon and Saba, plus there is a Bivens case on the docket for next term. Viewed in that context, Landor makes sense: Congress should make explicit to prison officials that they are subject to monetary damages. Moreover, for the first time since NFIB, the Court has imposed limits on Congress's spending power and the Necessary and Proper Clause. Last week in Hemani, Justice Thomas wrote that "It has now been 26 years since a party has received relief in this Court based on a Commerce Clause challenge." Yet only a few days later, a party has received relief based on the Spending Clause and the Necessary and Proper Clause. I can see how Justices Barrett and Kavanaugh could find this enterprise worth pursuing. Why did the Chief jump ship? Maybe he is still feeling some pangs of regret about NFIB. (I am still not over the case). Justice Jackson jabs the Chief hard on this point:

Taking this wisdom to heart, the Court usually exhibits a well-founded "reticence to invalidate the acts of the Nation's elected leaders." National Federation of Independent Business v. Sebelius, 567 U. S. 519, 537–538 (2012) (opinion of ROBERTS, C. J.). In my view, an ill-formed analogy to contract law is a regrettable basis on which to turn reticence into enthusiasm.

I will have a lot more to say about Landor. This might be the most important enumerated powers case since NFIB.

Update: A colleague writes with another theory: Justice Kavanaugh was assigned the majority opinion on the ground that appropriate relief isn't clear enough in RLUIPA, however, Gorsuch persuaded four others to rule based on the Spending Clause. At that point, Kavanaugh dropped his opinion and went along with Gorsuch. My colleague suggests it makes no sense that Justice Kavanuagh has no November cases, and there is nothing else he could have lost. Moreover, he adds, the conservatives all seemed united in result after argument, so there is no reason to think Jackson ever had two of them. This theory seems persuasive.

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Yesterday, in Make the Road New York v. Mullin, a divided panel of the U.S. Court of Appeals for the D.C. Circuit vacated a district court's stay blocking the Department of Homeland Security from applying "expedited removal" processes more broadly. Judge Walker wrote the opinion for the court. Judge Rao concurred in part and concurred in the judgment. Judge Wilkins concurred in part and dissented in part. Given the subject matter of this case, and the panel's composition, I suspect Make the Road will seek en banc review, and that there's a strong chance such a petition will be granted, as the full D.C. Circuit is significantly more liberal than this panel.

Judge Walker's offered this summary at the start of his opinion:

Thirty years ago, Congress created a new process for deporting illegal aliens. It is called "expedited removal." Unlike other statutorily required procedures that can take years to complete, expedited removal often takes just a few days.

At issue here is the provision allowing the Secretary of Homeland Security to designate certain aliens already in the country for expedited removal. Congress excluded many people from that provision. Any aliens admitted or paroled are excluded, even if they are here illegally. So too is anyone who can prove he has lived here — legally or illegally — for at least two straight years.

As for whether to designate other aliens for expedited removal, Congress let the Executive decide. And for many years, while some were designated, others were not. But that changed in January 2025 when the Executive expanded expedited removal to the maximum extent allowed by Congress.

The district court stayed the expansion, holding that it likely violated due process.

Because it does not, we vacate the stay.

Judge Rao agreed with Judge Walker that the expansion of expedited removal does not violate due process, but disagreed with the majority's conclusion that this question is subject to judicial review. Judge Wilkins agreed with Judge Walker that the expedited review policy was subject to judicial review, and concluded the way the policy was adopted violated due process.

In my view, Judge Rao's opinion is likely correct (and is a likely preview of what a majority of the justices would conclude), but is in tension with D.C. Circuit precedent. Here is how her opinion begins:

When reforming immigration law in 1996, Congress created a procedure for quickly removing certain unlawfully present aliens from the United States. Congress also gave the Executive "sole and unreviewable discretion" to decide which aliens would be subject to expedited removal and explicitly barred courts from reviewing those decisions. Make the Road challenged the Executive's policy decision to expand the reach of expedited removal. The district court concluded that it had jurisdiction and issued a universal stay of the expedited removal policy.

This lawsuit should have been dismissed at the threshold because Congress left expedited removal policies to the Executive's discretion, barred judicial review, and foreclosed universal remedies. While I respectfully disagree with my colleagues' decision to reach the merits, I agree with Judge Walker that the expedited removal policy is consistent with due process and that the district court's stay must be vacated. After over a year of litigation, the government finally may proceed with its expedited removal policy.

Interestingly, Judge Walker joined this portion of Judge Rao's opinion (so it reflects the views of a majority of the panel, even if it is not part of the judgment):

Our circuit has held that district courts have jurisdiction over preenforcement challenges to designation decisions and expedited removal policies implementing those decisions. Make the Road I, 962 F.3d at 624–26; see also Majority Op. 14–15. This conclusion, however, is inconsistent with the text and structure of IIRIRA. I again highlight the lack of jurisdiction because this error lies at the inception of this and many other cases. See Make the Road I, 962 F.3d at 639–45 (Rao, J., dissenting) (explaining why courts lack jurisdiction over preenforcement suits challenging expedited removal designations).

Congress's power to limit federal court jurisdiction is one of the few checks on the Judiciary. Accordingly, a "statute affecting federal jurisdiction must be construed both with precision and with fidelity to [its] terms." Kucana v. Holder, 558 U.S. 233, 252 (2010) (cleaned up). That principle applies with particular force here given that "many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts—indeed, that can fairly be said to be the theme of the legislation." Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999).

IIRIRA doubly strips jurisdiction to review the Designation. First, courts lack jurisdiction to review "any … decision or action … the authority for which is specified … to be in the [Secretary's] discretion." 8 U.S.C. § 1252(a)(2)(B)(ii). This covers expedited removal designations, which Congress expressly committed to the "sole and unreviewable discretion" of the Secretary. Id. § 1225(b)(1)(A)(iii)(I); see Make the Road I, 962 F.3d at 63941 (Rao, J., dissenting).

Second, courts generally lack jurisdiction to review policies and procedures implementing expedited removal. See 8 U.S.C. § 1252(a)(2)(A)(iv). Congress conferred authority on the Secretary to set expedited removal policies and stripped courts of jurisdiction to consider challenges to those policies. See id. §§ 1225(b)(1)(A), 1252(a)(2)(A)(iv). By contrast, Congress preserved judicial review of challenges to written policies and procedures "solely in the context of individual 'determinations under section 1225(b).'" Make the Road I, 962 F.3d at 642–43 & nn.10–11 (Rao, J., dissenting) (quoting 8 U.S.C. § 1252(e)(3)(A)). IIRIRA preserved judicial review for individuals vindicating their legal rights. But there are no individual determinations at issue in this case. Make the Road's lawsuit fails because the Secretary's Designation is an expedited removal policy that cannot be reviewed by the federal courts.

IIRIRA commits expedited removal policies to the Secretary's discretion and insulates that discretion from judicial review. Although circuit precedent forecloses this conclusion, the district court had no jurisdiction to consider Make the Road's preenforcement challenge to the Designation.

For Judge Rao, this is just one of the problems with the district court's order. Judge Rao (again writing for just herself) concludes:

My colleagues conclude that Make the Road's challenge to the Designation is reviewable and that the district court had authority to issue a universal stay. Those conclusions, however, run into multiple roadblocks Congress erected in IIRIRA to "protect[] the Executive's discretion from the courts" with respect immigration policy. American-Arab AntiDiscrimination Comm., 525 U.S. at 486. First, courts cannot review the Secretary's discretionary decisions, which include the designation of aliens for expedited removal. Second, courts cannot review the policies and procedures implementing expedited removal in preenforcement challenges. Third, courts cannot enter universal injunctions or stays in preenforcement challenges. Finally, APA review and APA remedies are not available for the Designation, which is an expedited removal policy that Congress committed to the "sole and unreviewable discretion" of the Secretary.

In sum, IIRIRA forecloses judicial review of Make the Road's preenforcement challenge to the Designation, and the APA does not provide a back door for the district court's universal stay. I concur in the judgment because I agree that the Secretary's expedited removal procedures are consistent with due process and that the district court's stay must be vacated. Nevertheless, the more fundamental error lies in the district court exceeding its lawful authority and halting an immigration policy that Congress left to the discretion of the Executive Branch.

As noted above, I suspect the respondents--either the activist groups or blue-state AGs-- will quickly seek en banc review of this decision and that there is a strong likelihood that such a petition would be granted and the Trump Administration's expansion of expedited removal could again be put on hold. The D.C. Circuit, which (as a whole) is one of the more liberal courts in the nation, is developing a habit of taking decisions related to Trump Administration policies en banc if they go the Trump Administration's way. Case-in-point: On Monday the Court granted an en banc petition in In re Trump, in which a panel majority (again consisting of Judges Rao and Walker) granted a writ of mandamus putting an end to Judge Boasberg's criminal contempt proceedings investigating the Trump Administration's use of the Alien Enemies Act to deport alleged members of Tren de Agua.

Of course, should a majority of judges on the D.C. Circuit call for en banc review in Make the Road v. Mullins and re-impose the stay, the case would quickly find its way to the Supreme Court, where I suspect a majority of justices would embrace Judge Rao's views. Indeed, en banc action is likely the only way this case could get Supreme Court review. So the D.C. Circuit majority may face a choice between allowing a panel decision they don't like to stand, or risking that the panel decision (or, in this case, a concurring opinion) becomes an opinion of the Supreme Court.

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Let's go sitting-by-sitting.

Ten cases were argued in the October sitting and all ten were decided. Justice Jackson had two opinions, and the other Justices each had one.

Nine cases were argued in the November sitting and all nine were decided. Justices Kavanaugh and Jackson had none. Justices Gorsuch and Barrett each had two.

Eight cases were argued in the December sitting. Five of those cases were already decided, and Hamm v. Smith was DIG'd. Two cases remain outstanding: Trump v. Slaughter and NRSC v. FEC. So far, Justices Thomas, Kagan, Gorsuch, Barrett, and Jackson have written for December. The Chief Justice and Justices Alito, Sotomayor, and Kavanaugh have not yet written.  In May, I speculated that Justice Alito lost the majority opinion in Hamm. I predict that Chief Justice Roberts has Slaughter and Justice Kavanaugh has NRSC. I do not think Justice Sotomayor has an opinion from the sitting.

Seven cases were argued in the January sitting. Three of those cases were authored by Justices Thomas, Sotomayor, and Jackson. Four cases remain outstanding, and they are all huge. First, I am reasonably confident Chief Justice Roberts will write Cook. This is the sort of case he will certainly keep for himself. But now that Jerome Powell is no longer Chairman of the Fed, Cook seems must less hot. I suspect one Justice will write a single opinion for both Little v. Hecox and W.V. v. B.P.J. My best guess is Coach Kavanaugh, who has a special interest in female athletics, or Justice Barrett, who was a direct beneficiary of Title IX. The one wildcard will be if Justice Kagan, who was sympathetic to traditional view of Title IX, finds a way to write some narrow majority opinion that convinced the Chief. Kagan only has five majority opinions for the term, while Sotomayor and Jackson both have six. Kagan is due for a big one. Justice Gorusch wrote Hemani, but I don't think he also writes Wolford. Gorsuch is already at seven for the term. My guess is that whoever doesn't write the transgender sports cases will write Wolford.

Seven cases were argued in February. All seven cases were already decided. Chief Justice Roberts and Justice Jackson did not write from that sitting.

Eight cases were argued in March. Five were already decided. So far, Chief Justice Roberts, and Justices Thomas, Alito, and Barrett have not written for March. Once again, I think Chief Justice Roberts will keep Trump v. Barbara for himself. This case is too important to give up. Watson v. RNC considers whether late-arriving ballots can be counted. If the Court affirms the Fifth Circuit, I think Justice Alito has the opinion; if the Court reverses the Fifth Circuit, Justice Barrett will have the opinion. Mullin v. Al Otro Lado concerns aliens who are detained on the Mexico-side of the border and seek asylum. I suspect Barrett or Alito--whoever does not write Watson--will have Watson.

Nine cases were argued in April, and six were already released. Justice Alito, Kagan, and Kavanaugh have not yet written for April. The three outstanding cases are: Monsanto, Chatrie, and Mullin v. Doe. These assignments are a bit tricky to make since I am not sure how these cases will turn out. When Monsanto was argued, I thought it would be tough for the chemical company to count to five. Alito and Kavanaugh are solid votes for preemption. If they have the majority, then Roberts and/or Barrett voted for preemption. But if not, Kagan has the majority opinion. Chartrie is a Fourth Amendment case about geofences. I could see Kagan or Kavanaugh getting this case as well. And Doe concerns suspension of Temporary Protected Status for Haitians, Syrians, and other groups. I could see Kagan or Kavanaugh getting this one. Then again, the Haitian plaintiffs have asked the Court to DIG this case, so someone may have lost a majority opinion. I think a DIG is unlikely. The SG replied that the newfound documents do not concern the issue at play in this case. Moreover, these documents are not blockbusters like the submissions in the 2020 census case. The records seem to show (shockingly!) that political appointees make policy decisions. This basic point may upset those in the Deep State, but reflects a reality of governance. See Slaughter.

Let's see what Thursday brings.

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In a previous post, I outlined some of the many reasons why today's Supreme Court decision in Pung v. Isabella County, allowing below-market value compensation for tax foreclosure takings is wrong. The Takings Clause of the Fifth Amendment requires "just compensation" and giving owners far less than the property's fair market value doesn't measure up. Here, I add an additional point: The problem with fair market value compensation is not that it is too much, but that - all too often - it is actually too little. This isn't just my idiosyncratic view. It's a common criticism of current takings doctrine by scholars across the political spectrum.

I noted that critique in the amicus brief I filed in Pung on behalf of myself, the Cato Institute, and a group of property and takings scholars, and covered it in more detail in Chapter 8 of my book my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.  Here's a summary from a 2021 nonacademic article I wrote on the subject:

The Fifth Amendment specifically mandates that owners receive "just compensation," which the Supreme Court has long interpreted as the "fair market value" of the property. In reality, however, studies show that most owners get less than that, especially less affluent owners. That is true of both takings by state and local governments and takings conducted by federal government, such as those for President Trump's border wall. Under administrations of both parties, the Department of Homeland Security has a history of low-balling property owners.

Even full fair market value is often not enough to fully compensate owners for their losses. Many people value their property above what they could get for it on the market. Consider, for example, homeowners and small businesses who have been in the same location for years, and have longstanding relationships with friends, neighbors and customers in the area. Nonprofit institutions such as churches and other houses of worship also often have great value that goes beyond the market price of the land they sit on. Such "subjective value" is often left uncompensated when property gets condemned, even if the owners get the full market value of the land. That's true even in some cases in which the government takes only part of the owner's property, as when it seizes land to build a road or a border barrier that cuts through the owner's lot, thereby impairing his or her use of the rest of the property.

As I note in the article and elsewhere, figuring out how much more compensation governments should pay beyond fair market value is often a difficult task. In many situations, it may be so difficult that fair market value is the least bad available option. In addition, there are dangers of overcompensation, as well as undercompensation. If you pay too much, you might even get situations where - perversely - property owners actually lobby to get their property condemned.

Nonetheless, fair market value compensation is often actually far too little; and standard compensation processes often fail to get property owners even the value that the fair market value test is supposed to require. That state of affairs makes the Supreme Court's decision in Pung even more indefensible.

The post Fair Market Value Compensation for Takings is Often too Little, not too Much appeared first on Reason.com.

According to reports, Kannon Shanmugam dropped out of arguing T.M. v. University of Maryland Medical System Corporation to focus on arguing Cisco Systems v. Doe. As things turned out, Elizabeth Prelogar subbed in for T.M., but lost the pro bono case. And Kannon won, big league. Cisco will be pleased.

Cisco is a major case that effectively slams the door shut on possible liability under the Alien Torts Statute. Businesses will no longer need to decide between providing lucrative settlements or rolling the dice on devastating litigation. But even more importantly, this ruling sends a clear signal to lower courts, including the Ninth Circuit: Bivens is on borrowed time. The Court stated the issue plainly:

While our cases at one time permitted courts to provide redress if Congress remained silent, "we have since rejected the practice of fashioningrights of action as we see fit," FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. (2026). That is so because "[h]ome-grown causes of action are difficult to reconcile with 'the Constitution's separation of legislative and judicial power.'"

Fittingly, yesterday the Court granted Nielsen v. Watanabe, a Bivens case from, you guessed it, the Ninth Circuit. Cisco may have closed the door. Nielsen will hermetically seal the door across the board.

Let's start with the vote count, which is a bit quirky. Justice Barrett's majority opinion has six solid votes. There is no daylight between the Court's conservatives on this issue. Justice Sotomayor wrote a full-throated dissent. Justice Jackson wrote separately, joined by Justice Kagan. I am a bit confused with how to score Jackson's vote. The syllabus said Jackson "filed an opinion concurring in part and dissenting in part." But the separate writing begins "concurring in judgment in part and dissenting in part." I remain confused how a Justice can concur in "part" of a judgment. The Court issues a single judgment: affirm or reverse. Those judgments cannot be split into parts. The choice is binary: affirm or reverse. Still, a search reveals that is fairly common for a Justice to concur in part of a judgment.

In Cisco, Jackson agreed to reverse and remand the case to the Ninth Circuit because Cisco was not liable under the Torture Victim Protection Act. She wrote:

I therefore concur only in the judgment as to the majority's TVPA holding.

But Jackson would not have remanded the case under the Alien Tort Statute, since she agrees with Justice Sotomayor.

I agree with JUSTICE SOTOMAYOR's discussion of the Alien Tort Statute.

No matter how you slice it, Jackson voted to reverse and remand the case back to the Ninth Circuit. That is a reversal. Jackson should have said something to the effect of "concurring in part, dissenting in part, and concurring in judgment." Jackson's labeling strikes me as an effort to create some confusion over how she actually votes. There were some similar attempts to obfuscate the labelling in San Francisco v. EPA and Department of State v. Munoz.

Onto the merits. This is the sort of opinion where Justice Barrett can shine. It might be her best writing since CASA last term. Professor Barrett clearly thought about implied causes of action before she joined the bench. Moreover, unlike with Employment Division v. Smith, Barrett is proud to say how much she agrees with Justice Scalia. Now Barrett can elevate separate writings from Scalia, as well as Thomas, Gorsuch, and Kavanaugh to majority status. Justice Sotomayor expresses her palpable frustration with this sub silentio overruling of Sosa v. Alvarez-Machain (2004).

The Court nonetheless closes the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS. It thus overrules Sosa, without even acknowledging that it is doing so. Today's decision marks yet anotherlow point in this Court's esteem for its precedents. . . . . The majority instead turns down a different road, one paved not with the opinions of the Court, which are the law, but with the opinions of individual Justices, which are not. . . . These five opinions, however, are not, and never have been, the law.

The vote in Sosa was 6-3. Justice Souter kept Justices O'Connor and Kennedy on board by writing a narrow opinion that at least left the door opinion to recognizing new causes of action in the future. My general rule of thumb is that a precedent loses stare decisis value when all members of the Court's majority have left the Court. Since Justice Breyer's departure, the remaining Sosa majority was reduced to a null set. Perhaps the doctrine may be extended if a Justice's clerk becomes a Justice, as is the case for Justices Gorsuch, Kavanaugh, Barrett, and Jackson. But, as they say, stare decisis is not an inexorable command.

Barrett also uses some nice turns of phrase. She refers to "judicial creativity," a term I have used before. And she smacks down the dissent's lack of "judicial humility":

The dissent is confident about the ability of federal courts to "improve foreign relations" and make judgments that are "'consonant with U. S. foreign policy interests.'" Post, at 16 (opinion of SOTOMAYOR, J.). The Constitution's allocation of power, however, requires greater judicial humility.

Justice Sotomayor tries to return the volley, but she doesn't clear the net:

The majority urges "judicial humility" when it comes to matters of foreign affairs. Ante, at 9, n. 1. True judicial humility, however, is following precedent and respecting the wisdom of the jurists who precede us.

Ah yes, the "jurists of wisdom," including Justices O'Connor, Kennedy, and Souter who wrote Casey. That argument is not going to work. The entire notion of creating new causes of action is the antithesis to humility. These "jurists of wisdom" are injecting the judiciary into foreign disputes. It can never be humility to defer to judicial arrogance.

The post <i>Cisco</i> Slams The Door on ATS, and Perhaps All Other, Implied Causes of Action appeared first on Reason.com.

Today, the Supreme Court issued a terrible Takings Clause decision in Pung v. Isabella County. It's the worst Supreme Court takings decision in a long time, and perpetuates the Court's tradition of issuing awful property rights decisions on June 23 (which is the anniversary of Kelo v. City of New London). The ruling is unanimous, albeit with a concurring opinion by Justice Thomas, joined by Gorsuch, which is really more of a dissent.

Isabella County, Michigan seized the late Timothy Pung's house because he supposedly failed to pay some $2200 in taxes and fees (his estate claims he didn't actually owe anything). They then sold the property at auction for about $76,000; the County kept the $2200 it thought was owed and transferred the remaining funds (about $73,800) to Pung's estate. But the County had earlier appraised the value of the property at $194,400 and the winner of the auction resold the home for $195,000. That's strong evidence the auction price undercompensated the Pungs, and the County failed to pay the "just compensation" required by the Takings Clause of the Fifth Amendment.

In Tyler v. Hennepin County (2023), the Supreme Court unanimously ruled that "home equity theft" (the use of tax foreclosure auctions to take more than the owner owed) is a taking, and emphasized "[t]he principle that a government may not take more from a taxpayer than she owes." Nonetheless, today, in an opinion by Justice Samuel Alito, the Supreme Court ruled that owners whose property is taken by tax foreclosure are only entitled to the difference between the auction price and what they owed in delinquent taxes. This goes against the longstanding principle that "fair market value" is the standard for just compensation, and that the compensation is based on what the owner lost, not what the government gained.

Justice Alito cites two major justifications for the decision: that longstanding precedent supports it, and that a contrary ruling "would impose unprecedented burdens on jurisdictions that wish to collect unpaid taxes and might well make tax sales impractical" because local governments might end up suffering a "net loss" from foreclosure auction sales that sold for significantly less than fair market value.

Both of these arguments are badly flawed. None of the precedents Alito cites actually holds that fair market value compensation isn't required. None of them even addresses that issue. They all simply state that, under the Takings Clause or (in some cases) various federal and state statutes, the owner of the property is entitled to the surplus value obtained at the foreclosure auction beyond what he or she owed in delinquent taxes. They do not consider whether, in some cases, the Takings Clause actually requires more than that.

The only case cited by Alito that rejects fair market value compensation at all is BFP v. Resolution Trust Corp. (1994). But that ruling is not about the Takings Clause (which isn't even mentioned in the Court's opinion). It construes the meaning of "reasonably equivalent value" under the federal Bankruptcy Code. Significantly, BFP doesn't even involve a tax foreclosure, but one for an unpaid mortgage. Such a foreclosure likely doesn't qualify as a taking at all, because it is the creditor, not the government, that has the right to foreclose in such cases.

Justice Alito largely ignores the vast body of precedent indicating that "fair market value" is the usual standard for "just compensation" and that the proper measure is what the owner has lost, not what the government gains. For details, see the amicus brief I submitted on behalf of the Cato Institute, and a group of property and takings scholars, including myself.

He does  claim that fair market value is generally the standard only in "eminent-domain cases." But there is no justification for this arbitrary limitation. Indeed, Knick v. Township of Scott (2019), the case he cites for this proposition, is actually a regulatory takings case where the government did not initiate any eminent domain proceedings, because it claimed there was no taking at all.

Yet another error in the majority opinion is its perpetuation of the myth that the Supreme Court incorporated the Takings Clause against the states in 1897. In reality, as discussed in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain,  the Court did not incorporate the Clause at that time, and only later retroactively claimed that it had done so. This matters for the present case because tax foreclosures are almost always conducted by state and local governments. The lack of incorporation in the 19th and early 20th centuries helps explain why there were no Fifth Amendment Takings Clause decisions requiring fair market value compensation at that time.

Justice Alito notes (correctly) that precedent holds that fair market value need not be the standard  '[W]hen market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." Tax foreclosure sales rarely, if ever, fall in the former category, given that local governments that impose property taxes regularly appraise property in their jurisdiction (as happened in the Pung case itself).

Alito contends requiring fair market value compensation would be unjust because a delinquent property owner could potentially sell for fair market value before a foreclosure occurs, and because requiring fair market value compensation might render tax foreclosure auctions "impractical." Both theories are wrong.

A property owner facing foreclosure may not have the time or means needed to sell for fair market value. Moreover, there is often uncertainty about whether the foreclosure will actually occur, or whether a deal with the government can be worked out. Regardless, the fact that the owner might have been able to sell the property before the government takes it in no way vitiates the government's constitutional obligation to pay full compensation.

As detailed in our amicus brief (pg. 18), and others, states have a variety of options for structuring foreclosure auctions in ways that avoid the problem of net losses. For example, they can simply mandate a minimum auction bid equal to fair market value, or close to it.

If states cannot find a way to structure tax foreclosure auctions without often suffering net losses, that's a sign that those auctions are unjust and unconstitutional, and they should find some other way to deal with property tax delinquencies - or find some other way to fund local government. As Justice Thomas points out in his concurring opinion:

The County [claims that] if it is not able to take people's homes and sell them at auction in the manner that it did here, it will not be able to efficiently collect taxes. It argues that a fair-market-value rule would impede "the government's ability" to foreclose on homes in order to collect delinquent taxes…

In my view, that is the point of the Takings Clause, which necessarily prioritizes homeowners' property rights over the government's interest in efficiency and public necessity. "William Blackstone wrote that 'the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.' " Kelo, 545 U. S., at 505 (THOMAS, J., dissenting) (quoting 1 Blackstone 134–135). Whatever utilitarian desire the State may have for a tax-collection system that effectively confiscates citizens' homes based on small tax debts, citizens such as the Pungs have an antecedent and higher right to those homes.

Exactly so.

Speaking of Thomas's concurring opinion (joined on most points by Justice Gorsuch), it is really more of a dissent. Justice Thomas agrees with the majority that tax foreclosures need not always require fair market value compensation. But he also emphasizes that "Just compensation generally requires paying fair market value. Regardless of when exactly the history of tax foreclosure sales can justify a departure from that rule, my initial impression is that it cannot do so in this case." He goes on to point out that foreclosure auction rules historically required the government to first try to seize personal property to pay off a delinquent tax debt, and then - if that fails - try to settle the debt by taking only part of the owner's land, instead of all of it. He also emphasizes the vast discrepancy between the assessed market value of the Pung property and what the estate received from the proceeds of the foreclosure auction. He concludes that "[w]hat Isabella County did to the Pungs was wrong, and, on my initial view, likely unconstitutional."

Given these points, it seems like Thomas (and Gorsuch) believe the Pung estate deserves to prevail in this case, not the County. They should have just dissented. They nonetheless  concur in judgment, possibly because the majority opinion does not rule for the County outright, but rather vacates the lower court decision and remands for further proceedings.

In addition to rejecting the Pung estate's Takings Clause argument, the Court also rejects the argument that foreclosure violated the Excessive Fines Clause of the Eighth Amendment. The Court does not decide the issue of whether the foreclosure procedure was sufficiently "fair" (a question much-discussed during oral argument). That will, presumably, be considered on remand.

But, regardless of what might happen in this specific case after remand, today's decision is a terrible mistake that is likely to perpetuate abusive and unconstitutional tax foreclosure auctions. As noted in our amicus brief, such abuses are particularly likely to victimize elderly, disabled, minority, and legally unsophisticated property owners.

NOTE: The Pung estate is represented by the Pacific Legal Foundation, a public interest law firm which is also my wife's employer. She, however, is not one of the attorneys on the case. The estate is also represented by other attorneys.

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