From LNU v. Bondi, released Nov. 4, 2025 by Ninth Circuit Judges Richard Paez, Carlos Bea, and Danielle Forrest (though note that, on the merits, the court ruled in petitioners' favor):
On behalf of Petitioners, Attorney Mike Singh Sethi filed an opening brief with multiple fabricated citations and quotations. Sethi cited two cases that do not exist: Eduardo v. Garland, 28 F.4th 742 (9th Cir. 2022), cited at pages 5 and 16 of Petitioners' opening brief, and Lay v. Holder, 729 F.3d 962 (9th Cir. 2013), cited and discussed at page 16. And Sethi twice attributed quotations to opinions in which the quoted language does not appear: Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001), at page 17 of the opening brief, and Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015), at page 19.
After the panel denied the parties' joint motion to submit this case on the briefs, Sethi filed a motion to correct the record regarding errata in the opening brief. That motion represented the two nonexistent cases—Eduardo v. Garland and Lay v. Holder—as typographical errors. Sethi sought to replace those cases with two cases that have similar names, entirely different reporter numbers, and in the case of Lay, a different year and a different holding. Both replacement cases either do not support or are weak support for their intended propositions. The motion does not explain how such significant typographical errors occurred.
Sethi did not appear for oral argument. Attorney William Rounds appeared on behalf of Petitioners instead. At oral argument, confronted with the above issues, Rounds at first insisted that artificial intelligence was not used to draft Petitioners' briefs and that the errors were typographical. He later conceded that artificial intelligence might have been used by the individual who drafted the briefs, and that said individual was not yet licensed to practice law. Since oral argument, we have identified further issues in Petitioners' reply brief, and we have identified at least two other opening briefs filed in pending cases in which Sethi cites cases that do not exist.
From People v. Ocampo, decided by Illinois Appellate Court Justice David Navarro:
[Carlos] Ocampo was charged with harassment through electronic communications based on a series of emails .… One of [Ocampo's] pleadings … contained a statement of charges from the Illinois Department of Revenue (IDOR), which sought termination of Ocampo's employment for alleged actions that took place from March 2021 to February 2022. Those allegations were that Ocampo: (1) sent multiple emails to multiple recipients that "contained numerous and unsupported and unsubstantiated allegations against IDOR employees and included inappropriate pictures of his vomit in a toilet bowl"; (2) sent multiple emails that contained "racially sensitive remarks, inappropriate photos, and disparaging comments in an attempt to harm or destroy the reputation of fellow State employees"; and (3) harassed several members of IDOR after having been asked not to contact them. Ocampo was ultimately terminated….
At trial, Vincent Cacioppo testified that he was an IDOR employee for 36 years. He never had contact with Ocampo, except for "hundreds" of emails from Ocampo, starting in 2020. Cacioppo received emails from Ocampo unrelated to work, with false accusations and "nonsense." The emails made Cacioppo feel "horribly because [Ocampo] sent them to everybody in the State legislature, my colleagues."
On February 13, 2023, Ocampo sent Cacioppo and others an email with the subject line "insufferable racists." The body of the email insinuated that Cacioppo was in the mob. Cacioppo stated that he had no way to reach out to the other people to say he was not a racist or a bully, and that the emails damaged his reputation.
Two days later, Ocampo sent an email to Cacioppo and others with the subject line, "gang of white-skinned primates," and the body of the email indicated that Cacioppo was not only "running a gang of white-skinned primates, but also a ring of corruption and thieves." It also stated that Cacioppo "micromanaged minorities to make them feel incompetent," knew very little about taxes, had emotional outbursts, and was committing "white collar crime."
I participated along with James Burling (Pacific Legal Foundation), Prof. Peter Byrne (Georgetown), and Prof. Sara Bronin (George Washington University).
Yesterday, I participated in the Federalist Society National Lawyers Convention panel on "Socialism or Sensible Protections? Zoning, Rent Control, and the Housing Crisis." Although I proposed this topic to the Federalist Society Executive Committee on Property Rights (of which I am a member), I did not pick the title. The panel wasn't really about socialism, except tangentially. But it certainly was about zoning, rent control, and housing! The other participants were James Burling (Pacific Legal Foundation, author of Nowhere to Live: The Hidden Story of America's Housing Crisis), Prof. Peter Byrne (Georgetown), and Prof. Sara Bronin (George Washington University, author of Key to the City: How Zoning Shapes Our World). My own presentation was partly based on my recent article "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver). We also published a shorter, nonacademic, version in the Atlantic.
For such an ideologically diverse group, there was considerable consensus on a variety of issues, especially the extent to which exclusionary zoning and other regulations are major factors. Obviously, there was also disagreement on such questions as the extent to which judicial review should be used to break down regulatory barriers, and whether zoning deregulation should be combined with housing subsidies for the poor and lower middle class.
Below is a video of the panel. Viewers may wish to skip over parts of the first 15 minutes, where the moderator spent more time than necessary recounting the participants bios.
An interesting exchange occurred during last Wednesday's oral argument in the tariff cases [transcript available here] that caused me to scratch my head a little.
Background: As I'm sure most of you know, the relevant statute, the International Emergency Economic Powers Act ("IEEPA"), provides that if the President "declares a national emergency with respect to … any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States," the President may "regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importationor exportationof, . . . or transactions involving, any property in which any foreign country or a national thereof has any interest."
The bold-faced language is where all the action is – at least, that's pretty much all the Court wanted to talk about during oral argument: Is the imposition of a tariff included within the power to "regulate importation"?[1] The Administration says it has long been so understood; indeed, at one point the Solicitor General said that "the power to impose tariffs is a core application of the power to regulate foreign commerce, which is what the phrase 'regulate importation' in IEEPA naturally evokes." The challengers, on the other hand, pointed out that Congress has never – not once – used the phrase "regulate" to "impose taxes or for revenue-raising." Read More
On Friday night, the Court granted an emergency stay in Trump v. Orr, allowing the President's passport policy to go into effect. To the Court's credit, there was a mini merits analysis:
Displaying passport holders' sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government's choice to display biological sex "lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group."Trump v. Hawaii, 585 U. S. 667, 705 (2018) (internal quotation marks omitted).
The omission of internal quotation marks here is significant. That quotation came from Justice Brennan's opinion in Department of Agriculture v. Moreno, a decision that Justice Kennedy cited in Romer, Lawrence, and Windsor. That one passage was the fountainhead of so many flawed precedents. The full passage from Trump v. Hawaii is here:
Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a "bare . . . desire to harm a politically unpopular group." Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973). In one case, we invalidated a local zoning ordinance that required a special permit for group homes for the intellectually disabled, but not for other facilities such as fraternity houses or hospitals. We did so on the ground that the city's stated concerns about (among other things) "legal responsibility" and "crowded conditions" rested on "an irrational prejudice" against the intellectually dis- abled. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448–450 (1985) (internal quotation marks omitted). And in another case, this Court overturned a state constitutional amendment that denied gays and lesbians access to the protection of antidiscrimination laws. The amendment, we held, was "divorced from any factual context from which we could discern a relationship to legitimate state interests," and "its sheer breadth [was] so discontinuous with the reasons offered for it" that the initiative seemed "inexplicable by anything but animus." Romer v. Evans, 517 U. S. 620, 632, 635 (1996).
In 2018, when Trump v. Hawaii was decided, the Court needed Justice Kennedy's vote. That is no longer the case. I faulted Justice Barrett for citing this aspect of Trump v. Hawaii in her Skrmetti concurrence. And I will fault the per curiam Court for citing Trump v. Hawaiii in the passport case. This mode of constitutional adjudication should be jettisoned. We are no longer living in Justice Kennedy's shadow. Political majorities can disadvantage politically unpopular groups, unless there is some a constitutional prohibition. California democrats can gerrymander republicans out of power, and Louisiana republicans can gerrymander democrats of out of power--or at least they should be able to. Courts should not perform what McCreary County referred to as a "judicial psychoanalysis of a drafter's heart of hearts." Judges are textualists, not mentalists.
There is another facet of the passport case worth mentioning. In recent emergency docket rulings, the Court has often cited Chief Justice Roberts's in-chambers opinion in Maryland v. King. This ruling concluded the government suffers irreparable harm whenever it is unable to enforce its laws. Justice Jackson's Orr dissent pushes back on this premise in the context of an executive order:
While we have suggested that the government suffers "a form of irreparable injury" when it is enjoined from effectuating a duly enacted statute, see Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers), an executive order lacks the force of a statute, and an injunction barring such an order does not generate the same sovereign injury. To think it always does would be to endorse the "facially absurd" proposition that the President is irreparably harmed any time he is temporarily prevented from doing something he wants to do. D. V. D., 606 U. S., at ___–___ (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 11–12).
There is a fairly profound question here. What is law? Is law limited to a statute that was enacted pursuant to bicameralism and presentment? Or is it also law when the executive takes action pursuant to constitutional or delegated authority?
I considered this distinction in my article, Bilateral Judicial Reform. I suggested that when a district court enjoins a federal or state statute, there should be an automatic stay of the injunction. By contrast, when a district court enjoins some type of executive action, there should not be an automatic stay. I wrote:
In the federal context, laws pass through the crucible of bicameralism and presentment. Moreover, statutes were publicly debated and deliberated for ex-tensive periods, where members of the legislative and executive branch, as well as the public, had an opportunity to assess the bill. That process entitles laws to a presumption of democracy, if not a presumption of constitutionality. The same can be said of state laws that go through the legislative process. Presentment and bicameralism (unicameralism in Nebraska) are the norm for state laws. Such measures should be entitled to the same presumption of democracy, if not a presumption of constitutionality. Ditto for state constitutional amendments and referenda, which have a much stronger degree of democratic accountability than a mere statute. Statutes must be distinguished from executive actions. I would define this category broadly to include executive actions, executive memoranda, subregulatory guidance, administrative utterances, and any other diktat that can be issued without the benefit of public notice, comment, or input. They are simply announced on high from Olympus.
I thought that statutes were entitled to more deference than executive action. But Justice Jackson made a broader point. She contended that "an executive order lacks the force of a statute." In what way? Does she think that an executive order is not part of the "supreme law of the land" under Article VI? Could a judge refuse to enforce an executive order in court? Maybe Youngstown could have simply been resolved on the grounds that an executive action lacks the force of law. The previous Justice Jackson would have had far less to write. Would an executive action not preempt state law? (The Ninth Circuit held that DACA preempts state law in Brewer v. Arizona Dream Act Coalition.) If Justices Jackson, Sotomayor, and Kagan are interested, they should pursue the many ways in which executive actions lack the "force of a statute." Then we can talk about subregulatory guidance. I would be happy to have that conversation.
Section 1 of the Fourteenth Amendment includes references to both citizens and persons:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The text provide that only the "privileges or immunities" of citizens are protected. By contrast, persons receive the protections of the due process of law and the equal protection of the laws. And the first sentence instructs that not all persons are citizens, but personhood can exist prior to birth.
Debates about restoring the Privileges or Immunities Clause inevitably turn to the protection of rights for people who are not citizens. In McDonald v. Chicago, the Petitioner's merits brief preemptively addressed this issue: "Nor would invocation of the Privileges or Immunities Clause, referencing the rights of 'citizens,' rather than under the Due Process Clause, which protects 'person[s],' necessarily deprive non-citizens of any rights." In Timbs v. Indiana, the Petitioner argued that the Excessive Fine Clause of the Eighth Amendment should be incorporated through the Privilege or Immunities Clause. During oral argument, Justice Ginsburg asked if that argument "would leave out non-citizens?" Wesley Hottott, lawyer for the Institute for Justice, conceded the point. He said, "Yes, textually, Justice Ginsburg, that would leave out non-citizens, but, of course, Petitioner is a citizen, and that could be a decision for another day."
When McDonald and Timbs were argued, I think views on immigration were quite different then they are now. Under the political climate of the day, as well as the composition of the Court, it would have been unthinkable for the Court to decide a case that denied certain rights to aliens. In both cases, only Justice Thomas was willing to venture down that path. Justice Gorsuch has signaled that the right to a jury trial might be such a privilege or immunity of citizenship, but he hasn't signed on yet.
Today, however, the political climate with regard to immigration has changed. I don't think it would be unthinkable for the Court to rule that only citizens have a certain constitutional right. During the Rosenkranz Debate yesterday, Professor Mary Anne Case cast doubt on recognizing parental rights as a privilege or immunity of citizenship, because non-citizens would not receive those rights. I don't think that argument resonated, at all, in the ballroom. Indeed, for the first time that I can recall, the Federalist Society's National Convention held a showcase panel on illegal immigration. Speakers included Gene Hamilton from America First Legal, who served as President Trump's Deputy White House Counsel, and Trevor Ezell, who serves as Governor Abbott's Counsel. They advanced a pro-restrictionist reading of the Constitution.
Should the denial of rights to non-citizens cut against restoring the Privileges or Immunities Clause? I don't think so. The original meaning of the Constitution is the original meaning of the Constitution. We shouldn't distort that meaning to satisfy present-day preferences.
Could Congress address this situation? By analogy, the Bill of Rights and the Fourteenth Amendment do not extend to Indian Tribes. For example, after Obergefell, Indian Tribes still had to decide whether to legalize same-sex marriage. The federal Bill of Rights and the Fourteenth Amendment likewise do not directly extend to Puerto Rico and other territories (though the nuances are complex).
Could Congress pass a statute guaranteeing the privileges or immunities of citizenship to resident aliens--that is, people in the country lawfully but who are not citizens? Without question, Congress could pass a statute that requires federal officers to secure these rights to aliens. But could Congress require the states to protect the privileges or immunities of aliens? Stated differently, could Congress waive a state's sovereign immunity if it deprives an alien of the privileges or immunities of citizenship? I think there would be a Boerne problem. Congress cannot expand the scope of Section 1. If the text only extends these rights to citizens, then I do not think Congress could use its Section 5 powers to require states to secure these rights to noncitizens.
This thought experiment reinforces how challenging it is to map nineteenth century understandings of citizenship onto modern immigration laws. During the debates over the Fourteenth Amendment, there were discussions about Gypsies and Chinese workers. But the dynamics back then are very different from the dynamics today.
I think back to A.A.R.P. v. Trump, which ostensibly recognized due process rights for illegal aliens who were designated as enemy aliens. What process was due to these individuals? The Alien Enemies Act suggested that these aliens receive zero process at all. I have always thought this law was arguably a suspension of the writ of habeas corpus.
I also think back to debates about how illegal aliens affect representation. Justice Thomas's concluded in Evenwel v. Abbottthat "the Constitution did not resolve whether the ultimate basis of representation is the right of citizens to cast an equal ballot or the right of all inhabitants to have equal representation."
The litigants in this case … have been repeatedly warned that factitious citations will not be tolerated by the Court. Judge Stafford ordered Plaintiff and Defendant to "include a written representation that [they have] personally checked each legal citation and each citation is accurate and stands for its asserted proposition" and warned that a failure to do so may result in sanctions. Despite Judge Stafford's order, both Plaintiff and Defendant have violated the Court's express requirements and lied to the Court numerous times….
Defendant's objection, which was previously stricken by the Court, contained several factitious citations…. Plaintiff's objection contains at least two factitious citations…. Plaintiff references these factitious citations despite her declaration of verification, which states "I, the undersigned, verify that the legal authorities cited herein are accurately stated, relevant …, and drawn from controlling or persuasive precedent applicable to the issues presented in this case." …
Plaintiff's response to Defendant's objections also contains a factitious citation…. Plaintiff references this factitious citation despite her certification, which states "Plaintiff affirms that all legal authorities cited in this filing have been reviewed and verified for accuracy. All case citations were cross-checked using Westlaw and the University of Detroit Law Library, with the assistance of library staff, to ensure correct citation format, validity, and precedential status as of the date of filing." …
After 5:00 p.m. on Thursday, November 6, federal district court Judge John McConnell issued an order requiring the federal government to transfer fund from a school lunch program to pay for SNAP benefits. One might have expected the federal government to take an immediate appeal--this ruling from this particular judge was not unexpected. However, the Department of Justice did not file a brief right that evening. Rather, the brief was filed the morning of Friday, November 7. Why didn't the government file an immediate appeal? The Solicitor General's emergency application to the Supreme Court offered this explanation:
Nonetheless, after 5 p.m. on November 6 (yesterday), the district court directed USDA to pay the full November allotment by November 7 (today). . .
The government filed an emergency stay motion as soon as it was possible to file in the U.S. Court of Appeals for the First Circuit, which was this morning, and requested a ruling by 4 p.m. The First Circuit requested a response due by noon, but as of now, has not yet ruled on the government's motion.
According to Attorney General Pam Bondi, the government was unable to file an emergency appeal to the Fifth Circuit until the following morning because the First Circuit clerk's office would not accept the filing. In a thread, Bondi laid out the chronology.
.@TheJusticeDept just filed a request for an immediate stay of Judge McConnell's utterly lawless Temporary Restraining Order issued yesterday after business hours—yet remarkably forcing @USDA to "raid school-lunch money to instead fund SNAP benefits." That TRO purports to force the government to divert some $5 billion from the school lunch program to SNAP by the end of today.
Why could we file this brief only this morning, with that clock ticking? The First Circuit clerk's office made it impossible to file sooner. Despite being notified by the government of the high likelihood of fast-moving litigation, the First Circuit clerk's office refused to answer its phones until this morning, and refused to offer any means of filing this emergency request until it processed certain paperwork during regular business hours.
So, Judge McConnell exacerbated his own manufactured emergency by starting the government's clock just after the First Circuit closed for the day, forcing an even faster rush today to disadvantage the government further.
It is Congress's job is to end this shutdown and fund SNAP and other programs. We ask the First Circuit to get courts out of the business of deciding how to triage scarce funds during a shutdown. When lawless district courts step in to try to manage the federal fisc, it upends the political process and unacceptably risks compromising the programs for everyone.
Bondi makes two charges. First, she writes that Judge McConnell deliberately waited until after 5:00 p.m. to issue his twenty-seven page opinion. Second, she claims that the First Circuit Clerk's Office, knowing that an emergency filing was coming, refused to answer the phone or process the filing. It could be the case that the Judge issued the order as soon as he was done with it. It could also the case that the staff of the Clerk's office, perhaps short-handed due to the shutdown, simply went home before five and was unable to answer the phone. It is Hanlon's Razor or Occam's Razor? I'll let others decide which explanation is more likely.
But I think these facts demonstrate, quite clearly, that federal courts are not Denny's. They are never expected to operate around the clock, and as a practical matter, are not required to accept unusual filings after hours--even in emergency cases where the federal government demands an immediate filing.
The Solicitor General also respectfully requests this Court grant an immediate administrative stay of the district court's orders by 9:30pm this evening while the Court considers this application.
I understand that Circuit Justice Jackson acting along, and granted an administrative stayat some point before 9:17 p.m. It does not appear that she referred the case to the full Court. But her order had a wrinkle:
This administrative stay will terminate forty-eight hours after the First Circuit's resolution of the pending motion, which the First Circuit is expected to issue with dispatch.
This timeline will force the government to file yet another frantic appeal to Circuit Justice Jackson again as soon as the First Circuit resolves the pending motion. (As of late Saturday evening, the motion remains pending). We will see if she acts upon it right away, or refers the case to the full Court.
This process differs from the treatment that the Fifth Circuit and a Texas District Court Judgereceived in A.A.R.P. v. Trump. Remember that the judge was faulted for not responding to an overnight, ex parte phone call from the ACLU. Meanwhile, it seems the First Circuit's clerk wouldn't even pick up its phone. In A.A.R.P., the Supreme Court granted an emergency stay of the district court, moments before the Fifth Circuit ruled. And the Supreme Court's order was not set to expire after the Fifth Circuit's order issued. Instead, it lasted for nearly a month.
The Sierra Club is one of the oldest and most well-known environmental organizations in the country. It was founded in 1892 and became a powerful political force in twentieth century environmental politics.
In recent years, however, the Sierra Club has been losing members, money, and support. A major reason for this is that the Club, like many progressive non-profits, sought to embrace a broader social justice agenda and, in the process, alienated parts of its core environmental support, according to an extensive investigative report in the New York Times.
The story begins:
The Sierra Club calls itself the "largest and most influential grass roots environmental organization in the country." But it is in the middle of an implosion — left weakened, distracted and divided just as environmental protections are under assault by the Trump administration.
The group has lost 60 percent of the four million members and supporters it counted in 2019. It has held three rounds of employee layoffs since 2022, trying to climb out of a $40 million projected budget deficit. . . .
"Sierra Club is in a downward spiral," a group of managers wrote in a letter reviewed by The New York Times to the club's leadership in June. . . .
While the Sierra Club's leadership disputes the Times' analysis, the story makes a compelling case that as the Club's attempted to become more "woke"--to integrate broader concerns about racial justice, gender equity, and so on--it lost focus and support, drove away longtime supporters and volunteers. But according to the Club's leadership, the real problem is that those concerned about the environment became complacent after Joe Biden was elected, and the ability of supporters to give to the organization was hampered by broader economic conditions.
As the Times recounts, after Trump's first election, the Club sought to broaden its base by appealing to a wider range of progressive policy concerns, as well as to make its own operations more equitable. Among other things, it supported and buttressed the employee union, which increased the organization's labor costs substantially. But that was not all.
It issued an "equity language guide," which warned employees to be cautious about using the words "vibrant" and "hardworking," because they reinforced racist tropes. "Lame duck session" was out, because "lame" was offensive. Even "Americans" should be avoided, the guide said, because it excluded non-U. S. citizens.
The club even turned on its own founder, John Muir, with Mr. Brune saying the environmental icon had used "deeply harmful racist stereotypes" in his writings about Native Americans and Black people in the 1860s.
Mr. Mair, who had been the group's first Black board president, wrote a rebuttal defending the founder. The Sierra Club refused to publish it, and censured him when he published it elsewhere.
"Do we want to still be the Sierra Club anymore?" Mr. Mair said he thought at the time.
This was apparently a reasonable question, as the organization, for a time, seemed more focused on investing in priorities other than environmental protection.
Jim Dougherty, an environmental activist and Sierra Club director, said he had raised objections to a 2019 budget that called for the equivalent of 108 full-time employees to work on a "national equity investment." Most of those were not new hires; rather a refocus of the responsibilities of many current employees.
The club said that was meant to address the "problematic lack of diversity and inclusion in the environmental movement and to make the Sierra Club a welcoming and supportive place to work for all employees."
"I said, 'We have two F.T.E.s devoted to Trump's war on the Arctic refuge, and we have 108 going to D.E.I., and I don't think we have our priorities straight,'" Mr. Dougherty said, using the acronyms for "full-time employees" and "diversity, equity and inclusion."
Mr. Dougherty said no other board members agreed, and the budget passed.
In another instance, a prominent volunteer who pushed for greater wildlife protection efforts was challenged by a Club staffer who reportedly told her "That's fine, Delia. But what do wolves have to do with equity, justice and inclusion?'"
While the Club's membership is overwhelmingly liberal, those who donated to the organization tended to rank environmental concerns well above combatting racism or other social justice concerns. And when the organization sought to take a stand on the Israel-Palestine conflict, all it did was sow further discord among its ranks.
The Sierra Club has faced internal dissension and difficulty before, including when there were internal fights over immigration (because, in the view of some environmentalists, people are the problem). Refocusing on its core mission may help it recover its balance, but there's little question it (like most major environmentalist organizations) will remain a progressive organization, generally aligned with the Democratic Party. This is something I wrote about thirty years ago in my first book, and one of the dynamics that I believe hampers greater environmental progress. In this regard, it appears that listing further to the left is a losing strategy.
[Note: Post has been edited to clean up some awkward phrasing.]
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, Indiana law requires prosecutors to produce detailed reports documenting how they use civil forfeiture. But we did a little sleuthing, and whoo boy, it turns out that the reports are riddled with errors. Indeed, nearly 30 percent of cases are going entirely unreported, a problem that is particularly acute in the counties that farm out their forfeiture prosecutions to private attorneys. Scandalous. Click here to learn more.
New on the Short Circuit podcast: New Orleans was so desperate to restrict short term rentals that it actually failed the rational basis test.
Department of Energy adopts new efficiency standards for consumer furnaces that effectively prohibit the sale of "non-condensing" furnaces (that vent through a vertical chimney) in favor of more efficient "condensing" furnaces (that require a different type of ventilation). Appliance manufacturers sue. D.C. Circuit: "[I]t is obvious that consumers do not buy small furnaces or commercial water heaters because of how the appliance vents." The rule stays. Dissent: You think nobody cares about having to punch new vents in their walls? The rules should go.
Are we the only ones to notice the recurrence of Second Circuit panels' issuing their opinions "per curiam" in controversial Trump litigation? In fairness, published per curiams are not uncommon in the Second Circuit, but still. Peculiar. Anyway, here's the latest, which remands for the district court to rethink whether Trump's New York state criminal prosecution (now on appeal in the state-court system) should be allowed into federal court instead. Read More
I have long advocated using May 1 for this purpose. But November 7 is a worthy alternative candidate, which I am happy to adopt if it can attract a broad consensus.
Since 2007, I have advocated designating May 1 as an international Victims of Communism Day. The May 1 date was not my original idea. But I have probably devoted more time and effort to it than any other commentator. In my view, May 1 is the best possible date for this purpose because it is the day that communists themselves used to celebrate their ideology, and because it is associated with communism as a global phenomenon, not with any particular communist regime. However, I have also long recognized that it might make sense to adapt another date for Victims of Communism Day, if it turns out that some other date can attract a broader consensus behind it. The best should not be the enemy of the good.
As detailed in my May 1 post from 2019, November 7 is probably the best such alternative, and over time it has begun to attract considerable support. Unlike May 1, this choice is unlikely to be contested by trade unionists and other devotees of the pre-Communist May 1 holiday. While I remain unpersuaded by their objections on substantive grounds, pragmatic considerations suggest that an alternative date is worth considering, if it can avoi such objections, and thereby attract broader support.
The November 7 option is not without its own downsides. From an American standpoint, one obvious one is that it will sometimes fall close to election day, as is the case this year. On such occasions, a November 7 Victims of Communism Day might not attract as much attention as it deserves, because many will - understandably - be focused on electoral politics instead. Nonetheless, November 7 remains the best available alternative to May 1; or at least the best I am aware of.
For that reason, I am - once again - doing a Victims of Communism Day post on November 7, in addition to the one I do on May 1. If November 7 continues to attract more support, I may eventually switch to that date exclusively. But, for now, I reserve the options of returning to an exclusive focus on May 1, doing annual posts on both days, or switching to some third option should a good one arise.
In addition to its growing popularity, November 7 is a worthy alternative because it is the anniversary of the day that the very first communist regime was established in Russia. All subsequent communist regimes were at least in large part inspired by it, and based many of their institutions and policies on the Soviet model.
Having explained why November 7 is worthy of consideration as an alternative date, it only remains to remind readers of the more general case for having a Victims of Communism Day. The following is adopted from this year's May 1 Victims of Communism Day post, and some of its predecessors:
The Black Book of Communism estimates the total number of victims of communist regimes at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny.
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had equally horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why most of the horrors perpetrated by communist regimes were intrinsic elements of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. The latter probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is probably inevitable in a socialist economic system in which the government controls all or nearly all of the economy.
While the influence of communist ideology has declined greatly since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's socialist policies have resulted in severe repression, the starvation of children, and a massive refugee crisis—the biggest in the history of the Western hemisphere. Recent events in Venezuela also highlight the dangers of "democratic socialism." While most communist regimes have taken power by force, ignorance about the history of communism and socialism could enable such movements to take power by democratic means and then eventually shut down democracy, as has actually happened in Venezuela. "Democratic socialism" - which has many of the same flaws as the authoritarian version is gaining in popularity on the political left in the US, as shown by the recent election of a prominent member of the movement as mayor of New York. Most of his supporters likely have little understanding of the dangers of his ideology. Victims of Communism Day can help combat such ignorance.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal war on Ukraine is primarily based on Russian nationalist ideology, rather than that of the Soviet Union. Nonetheless, the failure of post-Soviet Russia to fully reckon with its oppressive Soviet past is likely one of the reasons why Putin's regime came to power, and engaged in its own atrocities.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has become less and less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression). The government's brutal repression of the Uighur minority, and escalating suppression of dissent, even among Han Chinese, are just two aspects in which it seems bent on repeating some of its previous atrocities. Under the rule of Xi Jinping, the government has also increasingly reinstated socialist state control of the economy.
Here in the West, some socialists and others have attempted to whitewash the history of communism, and a few even attribute major accomplishments to the Soviet regime. Cathy Young had an excellent critique of such Soviet "nostalgia" in a 2021 Reason article.
Victims of Communism Day is also a good time to remember our duty to help those victims, or at least avoid impeding their escape from oppression. Among other things, it is unjust to deport migrants fleeing oppressive Marxist dictatorships, like those Cuba, Nicaragua and Venezuela, as the Trump Administration seeks to do to hundreds of thousands who entered the US legally under the CHNV program. If some on the left tend to ignore the evils of socialism, many on the nationalist right have been exacerbating the plight of its victims.
In sum, we need Victims of Communism Day because we have never given sufficient recognition to the victims of the modern world's most murderous ideology or come close to fully appreciating the lessons of this awful era in world history. In addition, that ideology, and variants thereof, still have a substantial number of adherents in many parts of the world, and still retains considerable intellectual respectability even among many who do not actually endorse it. Just as Holocaust Memorial Day serves as a bulwark against the reemergence of fascism, so this day of observance can help guard against the return to favor of the only ideology with an even greater number of victims.
Environmental law did not begin with enactment of the National Environmental Policy Act (NEPA) in 1969. Nor did it begin when Massachusetts adopted the first state wetland protection statute in 1963 or California adopted the first controls on air pollution from automobiles. It did not begin when the federal government established Yellowstone National Park in 1872 either.
Environmental law may have begun in 1610, when a landowner brought legal action against a neighboring pig sty, objecting to the fumes and odors it produced. The sty owner objected that the landowner's sensitivities should not take precedence over his productive activity, but the court was not convinced, recognizing that each landowner only has the right to make use of their property in such a way as not to infringe upon the right of others to do the same, and that this meant nuisance claims against polluting activity could proceed. This decision was not the first articulation of this principle, but it appears to have been the first reported case in which it was enforced.
What we think of as environmental law today--sprawling statutes authorizing expansive regulation of economic activity--is a relatively new phenomenon. The first environmental statutes were efforts to reinforce and supplement nuisance law, as well as to provide greater clarity and predictability as to what sorts of activities would be allowed where (e.g. whether coal-burning could occur in densely populated areas). It was not until much later that policymakers concluded environmental protection required the erection of an administrative state and prescriptive regulations supplanted tort law as the front line of environmental defense.
I recount this history in my latest Civitas Outlook column as a way of putting contemporary climate litigation in context. Some such litigation, such as suits against administrative agencies for regulating too much or too little, are products of modern administrative law. Others, including the wave of suits filed by state and local governments over climate change, are efforts to rely upon the longer history of tort law as a protection against environmental harm. This does not mean that such cases can or should succeed, but it does highlight ways in which these cases are meaningfully different from much contemporary environmental litigation, including the outlandish constitutional claims made in the various kids climate suits.
Tort law claims remain a viable path for environmental regulation save where such claims have been preempted by state or federal law. But such preemption requires legislative action, which is a problem for those who oppose climate tort suits because Congress has not done much of anything to occupy the field of climate policy, let alone to preempt such claims. I address this point in my Civitas column, as I have in prior blog posts and my scholarship (and will be discussing this question later today on a panel at the Federalist Society's National Lawyers' Convention).
The bottom-line point is relatively simple:
As a policy matter, it may make little sense to address climate change through myriad tort suits across varied jurisdictions. However, such policy arguments cannot compensate for the lack of legislation. Congress has never passed a statute that preempts state-law climate litigation or policy-making. State environmental regulation of some products (such as automobiles) is preempted. There may be constitutional constraints on the extent to which state courts can offer redress for harms caused by out-of-state actions. Still, there is no constitutional basis to claim, as fossil fuel companies, the Trump Administration, and some state attorneys general have alleged, that these suits cannot even be filed. This does not mean that state law tort claims should succeed; it only means that federal law has relatively little to say about it.
UPDATE: Here is the Federalist Society National Lawyers' Convention panel on "The Future of Federal Climate Litigation."
For more on the subject, here are my prior posts on climate-related tort litigation:
