in a major decision this morning, the Supreme Court has put the kibosh on the growing practice of issuing universal injunctions. In a 6-3 decision by Justice Amy Coney Barrett (the former civil procedure professor, natch), the Court grants the Trump Administration's request to narrow the injunction in Trump v. CASA (the Birthright Citizenship case). [Note, however, the opinion says nothing about the merits of the Trump Administration's position on birthright citizenship.]
The Court split on ideological lines. .Justice Thomas concurred (joined by Justice Gorsuch); Justice Alito concurred (joined by Justice Thomas), Justice Kavanaugh concurred. Justice Sotomayor dissented (joined by Justices Kagan and Jackson), and Jackson wrote a separate dissent (to which the majority replies quite forcefully).
a dissenting opinion.
Justice Barrett's decision for the Court begins:
The United States has filed three emergency applications challenging the scope of a federal court's authority to enjoin Government officials from enforcing an executive order. Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit. The injunctions before us today reflect a more recent development: district courts asserting the power to prohibit enforcement of a law or policy against anyone. These injunctions—known as "universal injunctions"—likely exceed the equitable authority that Congress has granted to federal courts.1 We therefore grant the Government's applications to partially stay the injunctions entered below.
Justice Barrett explains the core of the rationale:
The Government is likely to succeed on the merits of its argument regarding the scope of relief. See Nken v. Holder, 556 U. S. 418, 434 (2009) (holding that for a stay application to be granted, the applicant must make "'a strong showing that [it] is likely to succeed on the merits'"). A universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power.
The Judiciary Act of 1789 endowed federal courts with jurisdiction over "all suits . . . in equity," §11, 1 Stat. 78, and still today, this statute "is what authorizes the federal courts to issue equitable remedies," S. Bray & E. Sherwin, Remedies 442 (4th ed. 2024). Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies "traditionally accorded by courts of equity" at our country's inception. . . . We must therefore ask whether universal injunctions are sufficiently "analogous" to the relief issued "'by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.'" . . .
The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.
Equity offered a mechanism for the Crown "to secure justice where it would not be secured by the ordinary and existing processes of law."
The opinion closes, explaining the relief offered:
Some say that the universal injunction "give[s] the Judiciary a powerful tool to check the Executive Branch." Trump, 585 U. S., at 720 (THOMAS, J., concurring) (citing S.Amdur & D. Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. Forum 49, 51, 54 (2017); S. Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. Forum, 56, 57, 60–62 (2017)). But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.
The Government's applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity. The injunctions are also stayed to the extent that they prohibit executive agencies from developing and issuing public guidance about the Executive's plans to implement the Executive Order. Consistent with the Solicitor General's representation, §2 of the Executive Order shall not take effect until 30 days after the date of this opinion. See Tr. of Oral Arg. 55.
Check back to the blog for more on this important case, including how it jibes with theories that Justice Barrett is drifting or lacks "courage."
In his complaint, Plaintiff seeks relief under Title IX and other theories following his suspension from the Carle Illinois College of Medicine at the University of Illinois Urbana Champaign following the University's determination that he was responsible for a sexual assault. At the outset of this litigation, the Court granted Plaintiff's unopposed motion to proceed under a pseudonym. The Court entered a Protective Order which provided that Plaintiff would pursue this litigation under the pseudonym "John Doe" and that the parties would refer to Plaintiff's ex-girlfriend as "Jane Roe."
On December 11, 2024, following the Seventh Circuit's decisions in Doe v. Trustees of Indiana University, 101 F.4th 485 (7th Cir. 2024) and Doe v. Loyola University Chicago, 100 F.4th 910 (7th Cir. 2024), Defendant Board of Trustees of the University of Illinois … moved for reconsideration of the Order granting Plaintiff's motion to proceed under a pseudonym, which Plaintiff and non-party Jane Roe oppose….
A unique issue presented in this case is that Plaintiff was found responsible for sexual misconduct and, on a different occasion, after filing a complaint against Jane Roe, Plaintiff also was found to be a victim of sexual misconduct perpetrated by Roe. Roe disputes the allegations against her while also contending the process was unfair to her. She also states that her sanction was to write a paper and remain on probation for one year, after which her record was cleared of misconduct.
While the Court presumes that greater confidentiality protections are warranted for sexual misconduct victims as the Seventh Circuit suggested, see Loyola University, the Court concludes that anonymity on that basis does not extend to Plaintiff here because his complaint focuses on what he alleges were improper and unfair proceedings which resulted in a finding that he was responsible for sexual misconduct, thereby leading to his dismissal from the University. This case does not concern the allegations made by John Doe against Jane Roe. {For the same reason, to the extent that Jane Roe bases her opposition to disclosing Plaintiff's identity on the fact that this litigation includes allegations about Roe's alleged conduct toward Doe with which she disputes and claims are false, the Court is not considering any argument by Roe that Doe's identity should not be disclosed on that basis.}
The Court will turn to whether the disclosure of Plaintiff's real name in this case would allow others to identify Jane Roe….
Jerry is the managing partner of the Girley Law Firm, and Brooke, who is Jerry's daughter, holds an "of counsel" position at the firm. In 2021, Jerry represented Baiywo Rop in a civil lawsuit against Adventist Health System before the Ninth Judicial Circuit. Rop, a native of Kenya, alleged that Adventist Health wrongfully terminated him from its residency program due to discrimination based on race, national origin, and disability. The complaint also alleged retaliation. After Jerry presented Rop's case in chief, Adventist Health moved for directed verdict on all claims. The presiding judge, Judge Kevin Weiss, granted Adventist Health's motion on Rop's claims of discrimination based on national origin and disability. However, he reserved ruling on Rop's claims of discrimination based on race and retaliation.
At the conclusion of the trial, the jury returned a verdict in favor of Rop, finding that he proved that his race was a motivating factor in the decision to terminate him, and awarded him compensatory damages in the amount of $2.75 million. After the jury's verdict, Judge Weiss ruled on Adventist Health's earlier motion for directed verdict based on the racial discrimination claim and entered a directed verdict in favor of Adventist Health, finding that Rop failed to prove a prima facie case of unlawful discrimination based on race under the Florida Civil Rights Act. {Judge Weiss's order cited a decision in which this Court recognized the practice of reserving ruling on motions for directed verdict until after the jury returns a verdict … in order to avoid the need for a costly new trial in case of a reversal on appeal ….}
After the trial court entered its Order on Directed Verdicts, Brooke reposted on her social media the following posts by her brother Brian Girley, who handles social media for the firm: "Today in Orlando Florida a white Judge stole justice from a black doctor. After being awarded by a jury $2.75 million for discrimination a judge reversed their verdict. We need help getting this out," and "The Girley Law Firm won a case against @AdventHealth where a jury found that they had discriminated against a black doctor and awarded him $2.75 million. Today a white judge stole justice from him. This needs attention!" Brooke posted a picture of Judge Weiss with the message that "a white judge stole justice from a black doctor."
In the days following the trial, Brooke made several comments on social media regarding Judge Weiss and the Rop case, such as "[t]his is an injustice. One judge shouldn't be able to overturn a jury verdict," and "the judge did this own [sic] his on [sic] too. No one filed any post-trial motions." Brooke further stated: "I don't believe he had the authority to make this ruling and we need to hold him accountable." In other posts, Brooke commented, "[s]ounds like he needs to be investigated. #RemoveJudgeWeiss," and "[t]he court system is a sham!"
She also stated in one post that "[t]he Dres [sic] Scott rule still applies in 2021: 'A black man has no rights which a white man is bound to respect.' Y'all, we can't let this stand. #RemoveJudgeWeiss." In another post, Brooke posted a message claiming that "[e]ven when we win, it only takes one white judge to reverse our victory…. This is an injustice and cannot stand." Brooke also posted about organizing a protest rally to "bring attention to fact [sic] that judges are allowed to overturned [sic] jury verdicts and erode our civil rights."
From today's decision by Judge William Stickman IV (W.D. Pa.) in Jakes v. Youngblood(note that the lawyer, Tyrone Blackburn, "was arrested Wednesday and accused of hitting a process server with his car in New York City," in seemingly an otherwise unrelated matter [NBC News, Marlene Lenthang]):
Defendant Duane Youngblood ("Youngblood") filed a Notice of Motion to Dismiss, a supporting brief, and a reply brief requesting the dismissal of Plaintiff Thomas Dexter Jakes' ("Jakes") complaint with prejudice. Youngblood is represented by Attorney Tyrone A. Blackburn ("Blackburn"), the signatory of the motion and briefs…. While reviewing Blackburn's briefs, the Court became aware of the fact that they contain wholly fabricated quotations from caselaw—including fabricated quotations from the Court's own prior opinion. In addition to including non-existent quotations, the briefs repeatedly misrepresent case law.
Jakes also noticed the issues with Youngblood's brief and addressed them in his brief opposing Youngblood's motion to dismiss. In his reply, Blackburn failed to offer any explanation for the deficiencies and fabrications in his brief. Instead, he brazenly attempted to mount a tu quoque defense, asserting that "a LexisNexis Document Analysis of Plaintiff's own opposition brief reveals a pattern of misquotation, superficial citation, and invocation of authorities that are either inapposite or do not support the propositions for which they are cited." The Court thoroughly reviewed Jakes' response brief, and did not find any fabricated quotations or misrepresented case law.
Only Youngblood, through attorney Blackburn, submitted a brief replete with non-existent quotations and repeated misrepresentations of actual case law. Even more outrageously, a review of Youngblood's reply brief demonstrates that it too includes fabricated quotes and misrepresents case law. In other words, when accused of a serious ethical violation, attorney Blackburn chose to double down. This is very troubling. The Court views Blackburn's conduct as a clear ethical violation of the highest order. On June 25, 2025, Blackburn filed a Withdrawal of Appearance….
The fact that Blackburn submitted fabricated quotations and misleading analysis of case law is plain to see from the face of the briefs. When reviewing Blackburn's briefs, the Court was perplexed to see quotes attributed to the Court's own prior opinion in this case, as well as other case law, that was wholly fabricated. The Court was also troubled to find that Blackburn repeatedly misrepresented case law to support his contentions. By way of example, the following italicized portions of Blackburn's brief supporting the motion to dismiss represent a sampling of the fabricated quotes:
Each Justice has his or her own unique style of asking questions at oral argument. Justice Jackson, as this video relays, says "I don't understand" and "I'm trying to understand" quite a lot.
???? INBOX: If there's one thing we know about Justice Ketanji Brown Jackson this term - it's that she doesn't understand.
The Just Security website just published my article entitled "Nondelegation and Major Questions Doctrines Can Constrain Power Grabs by Presidents of Both Parties." Here is an excerpt:
On May 28, the U.S. Court of International Trade (CIT) issued a unanimous ruling against President Donald Trump's massive "Liberation Day" tariffs, in a case filed by Liberty Justice Center and myself on behalf of five U.S. businesses harmed by the tariffs. The ruling also addressed a related case filed by twelve states led by Oregon. The decision was in large part based on the nondelegation and major questions doctrines: two legal doctrines backed by many conservatives and libertarians, but viewed with suspicion by many on the left. That opposition is misguided. The CIT's tariff decision illustrates how the two doctrines help protect the constitutional separation of powers, and curb abuses by presidents of both parties….
In Federalist 47, James Madison warned, that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny," and emphasized that the president "cannot of himself make a law." The nondelegation doctrine helps keep these safeguards in place by preventing Congress from giving away its authority to the executive….
The nondelegation and major questions doctrines have long been criticized by progressives as mere tools for conservative judges to strike down liberal policies. But, in the IEEPA cases, both conservative and liberal judges used them to strike down a major initiative of a Republican president. The nationwide eviction moratorium struck down under the major questions doctrine during the Biden administration was actually first adopted by Trump (Biden extended it with minor modifications). These examples show the two doctrines can be used to counter power grabs by presidents of both parties, forestalling the kind of monarchical one-person rule the Framers of the Constitution sought to prevent. Indeed, Trump's IEEPA abuses in some ways reenact King Charles I's imposition of "Ship Money" taxes without parliamentary authorization, a power grab that helped precipitate the English Civil War.
Nondelegation is also often criticized because of the difficulty of determining when delegation goes too far. That problem is real. But we can at least agree that delegation of vast, sweeping authority like that claimed by Trump under IEEPA is excessive.
Major questions doctrine has likewise been criticized for being arbitrary and a deviation from normal rules of statutory interpretation. But there are two compelling rationales for it. If the Supreme Court remains unwilling to impose more than minimal nondelegation constraints, MQD is a more modest alternative, which at least requires Congress to be clear about its intention to delegate broad authority. In addition, as Supreme Court Justice Amy Coney Barrett emphasized in a concurring opinion in the student loan case, MQD is justified by the "commonsense principle… of communication" that we generally expect clearer, more precise statements of intent when we delegate broad power to an agent than when we delegate relatively narrow authority….
The IEEPA tariffs are not the only right-wing power grab that could be curbed by nondelegation and MQD. Trump has also claimed vast sweeping powers over immigration and imposing conditions on recipients of a staggering array of federal spending grants, including state governments and private institutions such as universities and schools. More generally, the "national conservatives" who have come to dominate the Republican party have an extensive agenda of federal government intervention in many aspects of society.
Trump's newly announced travel ban barring nearly all or most immigration from 19 countries is the kind of measure that may be vulnerable to a nondelegation challenge. It relies on an interpretation of immigration law that gives the president virtually unlimited power to restrict migration for virtually any reason he deems to be in the "interests of the United States." If an unlimited grant of tariff power is unconstitutional, the same may be true for unlimited executive power to impose immigration restrictions.
In currently ongoing litigation over his federalization of the California National Guard, and use of the military for domestic policing in Los Angeles, Trump is claiming Congress has delegated virtually unlimited authority to deploy the military domestically, and use it for ordinary law enforcement. If so, it would be a boundless delegation of Congress' constitutional authority to "provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions." Trump essentially claims he has been granted unreviewable authority to determine whether an "invasion," a "rebellion," or other grounds for federalizing the National Guard exists. Such massive, sweeping power surely violates nondelegation, much like a grant of unlimited authority to impose tariffs. And, for obvious reasons, it is extremely dangerous for any one person to have unconstrained authority to use the military domestically. Such power can easily be abused to target political opponents of the incumbent president. Major questions doctrine might also apply here, in so far as the scope of the power granted by Congress is not completely clear on the face of the relevant laws.
The Supreme Court's ruling striking down laws banning same-sex marriage was a great victory for liberty and equality. But it should have been based on better legal reasoning.
Celebration after Obergefell v. Hodges was decided. June 2015. (Howard University)
Today, is the tenth anniversary of Obergefell v. Hodges, the landmark Supreme Court decision striking down laws banning same-sex marriage. The ruling was a great victory for liberty and equality, and a striking example of how progress can be achieved by a combination of litigation and political action. The Court got the right result. But its reasoning should have been better. Instead of relying on a dubious mishmash of rationales, the Court would have done better to rule that laws banning same-sex marriage are unconstitutional because they discriminate on the basis of sex.
Obergefell was a great triumph for the civil rights of a long oppressed and despised minority. For decades, gays and lesbians had been discriminated against in a wide range of ways, and even subjected to criminal prosecution. Only with Lawrence v. Texas (2003) did the Supreme Court strike down anti-sodomy laws. I am old enough to remember widespread homophobic prejudice when I was growing up in the late 1980s and 1990s - not in a socially conservative area, but in an overwhelmingly liberal Boston suburb.
At the time of Obergefell, 37 states had same-sex marriage rights. But in 21 of them those rights depended on recent federal court decisions that would have been overturned had Obergefell come out the other way. Without Obergefell, many states would have continued to deny marriage equality for a long time to come, even up to the present day.
For gays and lesbians throughout much of the country, Obergefell was essential to ensuring they had secure marriage rights. In addition to the vastly important symbolism of this step towards equality, access to marriage enabled many thousands of same-sex couples to secure such practical benefits as adoption rights, inheritance rights, tax benefits, the ability to make medical decisions for sick or incapacitated partners, access to property rights reserved for married couples, and more. Most heterosexuals took these rights for granted, but gays and lesbians could not.
Obergefell was more than just a victory secured by lawyers making arguments in court. It was also the product of a longstanding civil rights movement. For decades, the gay rights movement had worked to influence public and elite opinion in favor of equality. Thanks to their efforts, public support for same-sex marriage rose from just 27% in 1996 to around 60% just before Obergefell was decided. At the same time, legal scholars and others advanced a variety of constitutional arguments for marriage equality which prevailed in several state supreme courts interpreting their state constitutions, and led to the invalidation of the federal Defense of Marriage Act in United States v. Windsor (2013), striking down a law that barred federal recognition of same-sex marriages performed in states where they were legal.
It took the combined force of shifts in public opinion and developments in legal argument to make Obergefell possible. The former allowed the justices to take the step they did, confident that most of society would back their decision. Just a few months before Obergefell, Supreme Court Justice Ruth Bader Ginsburg openly stated that the shift in public attitudes had paved the way for such a ruling, whereas earlier she had feared the public would not accept it. The arguments developed by scholars and advocates made it possible for the Court to issue a decision in favor of marriage equality consistent with professional norms.
It is important to remember that the same-sex marriage movement did not triumph by promoting "identity politics" validating a distinct LGBT cultural identity, but by emphasizing how same-sex marriage is fundamentally similar to opposite-sex marriage; and gays and lesbians, more generally, are fundamentally similar to heterosexuals. As an Iowa Supreme Court ruling in favor of marriage equality put it, the plaintiffs in the case were "in committed and loving relationships, many raising families, just like heterosexual couples."
In this respect, they followed in the footsteps of the racial equality and gender equality movements before them. There is a crucial lesson here for future movements seeking to expand liberty and equality to new groups, such as transgender people and undocumented immigrants.
Neither the Republican Party nor the more conservative Supreme Court has shown much enthusiasm for overturning Obergefell in recent years, even as the Court did overturn Roe v. Wade, the 1973 decision establishing abortion rights, in the 2022 Dobbs decision. Justice Samuel Alito's majority opinion in Dobbs carefully distinguished Obergefell from Roe, and - significantly - no other justice joined Clarence Thomas's concurring opinion advocating Obergefell's reversal.
Obergefell does have one important shortcoming: the Court's reliance on flawed legal reasoning. Justice Anthony Kennedy's majority opinion relied on a combination of "substantive due process" liberty arguments under the Due Process Clause of the Fourteenth Amendment (which bars states from depriving people of "liberty" without "due process of law"), and equality arguments under the Equal Protection Clause (which forbids deprivation of the "equal protection of the laws"). Notoriously, the Court failed to make clear the scope of the liberty in question, or exactly why it applies to same-sex couples, but not to other marriages long barred by law, such as polygamous marriages or those between close blood relatives. On the equality side, the Court failed to explain exactly what the forbidden classification was, even though equal protection analysis normally requires courts striking down a law to specify a "suspect classification," such as race, gender, or religion. Justice Kennedy also failed to specify what level of scrutiny he was applying to laws banning same-sex marriage, even though that determines the burden of proof the government must meet to justify its laws.
This hodgepodge has damaged Obergefell's reputation among legal experts, and made it unclear whether the decision precludes other types of state discrimination against gays and lesbians. The Court could have avoided this problem by simply ruling that laws banning same-sex marriage discriminate on the basis of sex, as Northwestern law Prof. Andrew Koppelman and I advocated in an amicus brief we filed in the case on behalf of a cross-ideological group of legal scholars. Koppelman (a liberal living constitutionalist) and I (a libertarian originalist) agree on little else; but we are united on this issue. Since 1976, the Supreme Court had held that laws discriminating on the basis of sex are subject to heightened "intermediate" scrutiny that laws banning same-sex marriage could not overcome.
And, as we explained, such laws undeniably do discriminate on the basis of sex. If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles cannot. Charles is denied the right to marry Bob solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination. It is much the same reasoning as that which earlier led the Court to hold that laws banning interracial marriage discriminate on the basis of race, because under such constraints who you are allowed to marry depends on your race. We also demonstrated how such a holding is justified under Supreme Court precedent, and the original meaning of the Fourteenth Amendment.
A ruling based on sex discrimination would have established a much stronger basis for same-sex marriage rights. It would also set a precedent clearly barring most other types of state discrimination against LGBT people, though difficult issues would still remain in cases where sex discrimination is permitted by law, as with transgender persons' access to womens' sports teams and single-sex bathrooms.
The Supreme Court has ruled that discrimination against gays, lesbians, and transgender people is sex discrimination under the Title VII federal employment discrimination law, in a 2020 decision written by conservative Justice Neil Gorsuch, It unanimously reaffirmed that conclusion this year. If the opportunity arises, it would do well to apply the same reasoning to the Equal Protection Clause.
United States v. Skrmetti, the Supreme Court's controversial recent 6-3 decision upholding state laws banning gender-affirming surgery for minors in does not undercut the sex discrimination theory. In Skrmetti, the majority carefully avoided any imputation that discrimination against LGBT people is not sex discrimination by holding that laws banning gender-affirming surgery present a special case, because they "prohibit… healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor's sex." The Court reasoned that the provision of such treatments for purposes other than facilitating a change of gender is fundamentally different, from a medical point of view, than their use to achieve that goal. Whatever the merits of that reasoning, it has few implications for more conventional forms of discrimination against gays and lesbians. Three conservative justices wrote concurring opinions arguing that transgender people are not a "suspect class" warranting special judicial protection. But even they did not say that discrimination against transgender people is not sex discrimination.
Despite flaws in reasoning, Obergefell still reached the right result, and remains a civil rights milestone. For the many thousands of families who benefit from it, the Court's reasoning understandably matters less than results. But better reasoning would make the decision a stronger precedent for the future.
The Supreme Court's decision in Seven County Infrastructure Coalition v. Eagle County was an important step toward reorienting enforcement and implementation of the National Environmental Policy Act (NEPA) in line with the actual text of the statute. As such, it was a rebuke to the expansive lower court interpretations of the statute that had accumulated over the past several decades. I discuss this development, and the significance of the decision, in my latest Civitas Outlook column. It begins:
Congress enacted the National Environmental Policy Act of 1969 (NEPA) to ensure the federal government would consider environmental protection among its priorities. The brief statute imposed a simple requirement that federal agencies consider the environmental impacts of their activities, but imposed no substantive environmental obligations. However modest at its enactment, the burden imposed by NEPA spread like kudzu, fed and watered by expansive court decisions, ensnaring even the most worthwhile projects in years of litigation and delay. Last month, however, the Supreme Court took notice.
In Seven County Infrastructure Coalition v. Eagle County, Colorado (SCIC), the Court concluded that lower courts had overread NEPA's requirements and disregarded federal agency expertise. Writing for the Court, Justice Brett Kavanaugh explained that NEPA, as written, "is a procedural cross-check, not a substantive roadblock" to governmental action or economic development. "The goal of the law is to inform agency decisionmaking, not to paralyze it." Yet, NEPA had become a frequent cause of obstruction and delay for all manner of infrastructure and other projects planned or authorized by the federal government. Observing that this "legislative acorn" had "grown over the years into a judicial oak that has hindered infrastructure development 'under the guise' of just a little more process," the Supreme Court cut NEPA's requirements back down to size. Wrote Kavanaugh: "A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense."
It takes more than a single Supreme Court decision to set things right, but this is a significant step. From the column:
Cutting NEPA's requirements down to size will help facilitate infrastructure and energy development, but Seven County Infrastructure Coalition is no silver bullet. NEPA is but one of many laws deployed against disfavored projects, and unleashing the next wave of energy and infrastructure development will require both administrative reforms and legislative action to lower hurdles and lift road blocks. The courts can only be expected to do so much.
I previously blogged about the decision here and here. Additional recent posts on NEPA and permitting are here, here, and here.
A confluence of three hot-topic issues, from a Dec. 3, 2024 Department of Homeland Security decision. Note that the claim here is a statutory religious exemption claim, not a constitutional claim under the Free Exercise Clause, though the statute is interpreted in light of the Supreme Court's First Amendment jurisprudence about the kinds of lines courts shouldn't try to draw when it comes to religious beliefs. Note also that this was decided at the end of the Biden Administration, so there's little reason to think that it stems from the Trump Administration's likely more vaccine-objector-friendly position.
Section 212(a)(1)(A)(ii) of the [Immigration and Nationality] Act makes a noncitizen inadmissible to the United States if they fail to present documentation of having received certain vaccinations. Section 212(g)(2) of the Act provides for a waiver of this ground of inadmissibility in certain circumstances, including when the requirement of a vaccination would be contrary to the noncitizen's religious beliefs or moral convictions. USCIS [U.S. Citizenship and Immigration Services] guidance provides that a noncitizen who … seeks [such] a waiver … must demonstrate the following criteria for the waiver to be approved: (1) they are opposed to vaccinations in any form; (2) the objection is based on religious belief or moral convictions; and (3) the religious belief or moral conviction is sincere.
The Applicant, a 13-year-old minor in the physical custody of her father since March 2022, sought adjustment of status to that of a lawful permanent resident …. In support of her application, the Applicant submitted a … Report of Immigration Medical Examination and Vaccination Record, reflecting that she is seeking a waiver of the vaccination requirements based on religious beliefs or moral convictions.
Accordingly, the Applicant … submitted a statement of her custodial parent (father) explaining the basis for objecting to all vaccinations based on, inter alia, their Christian faith, genetic material being in some vaccines, the biblical passage that man was created in God's image, and that biblical references to man being designed perfectly by God. The Applicant's father has not permitted the Applicant to take any vaccinations since he took custody in the United States from the Applicant's mother, who resides in Ukraine, in March 2022.
The issue has arisen in recent Second Amendment litigation of whether plaintiffs' challenges to restrictions are cognizable facially or only as-applied. On June 25, the question arose at the Second Circuit's oral argument in Christian v. James, 25-384-cv, an appeal of the district court's upholding of New York's ban on firearms in public parks. Referring to a prior precedent, the district court wrote: "In Antonyuk, the Second Circuit rejected the plaintiffs' facial challenge on the parks' issue, but recognized a potential distinction between urban and rural parks – to be decided, presumably, on an as-applied challenge."
Like other jurisdictions, New York relies on the Supreme Court's statement in United States v. Salerno (1987) that "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Tony Salerno was the "boss" of the Genovese crime family who participated in murder conspiracies. He thus couldn't exactly challenge the Bail Reform Act as applied himself.
In Christian, New York's attorney argued that "if 99% of a law is unconstitutional, but is 1% ok," it is valid because it has a constitutional application. But the question is whether the law at issue, not some other actual or theoretical law, can be constitutionally applied based upon the historical record supplied by the government. Indeed, that is the principle that synthesizes the Supreme Court's decisions in Heller and Rahimi.
In Heller, the Supreme Court held that the District of Columbia's ban on possession of handguns was facially unconstitutional under the Second Amendment. The Supreme Court confirmed in City of Los Angeles v. Patel (2015) that Heller involved a "facial challenge[ ]." And Heller declared D.C.'s ban facially unconstitutional despite the Court's dicta that a ban on possession of machine guns—presumably including fully automatic handguns—would be permissible. The Court did not reject Mr. Heller's facial claim because D.C. may have been able to ban a subset of handguns through a more targeted statute.
Under Heller, then, the fact that New York (for the sake of argument) may be able constitutionally to ban the possession of firearms in urban parks does not save from facial invalidity New York's ban on the possession of firearms in all parks, any more than D.C.'s presumed ability to ban fullyautomatic handguns saved from facial invalidity its attempt to ban all handguns.
Rahimi superficially appears to complicate the analysis, as there the Supreme Court invoked Salerno and held that the federal statute banning possession of firearms by a person subject to a domestic violence restraining order is constitutional at least with respect to persons who were determined to pose a threat of physical violence to another and therefore is not facially unconstitutional. But, critically, the statute at issue in Rahimi, 18 U.S.C. § 922(g)(8)(C), did not just happen to sweep up persons against whom such findings had been made, but instead specifically applied to persons subject to two different types of orders: (i) those including "a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child," as well as (ii) those that simply "explicitly prohibit[ ] the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury." As Rahimi held, "the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others." Thus, since subparagraph (i) was consistent with this principle, the Court could uphold Section 922(g)(8) facially without determining whether the statute would be constitutional as applied to orders that satisfied only subparagraph (ii).
Rahimi does not support the facial validity of New York's park ban, because in no circumstance would the government be required to prove as an element of the offense that a person possessed a firearm in an urban park – in other words, there is no separate subsection of the statute that applies specifically to urban parks. For Rahimi to support New York, the state's law would have to say something like, "firearms are prohibited in (a) urban parks, and (b) all other parks." But New York did not adopt that statute, and its general ban on guns in parks is therefore facially unconstitutional.
This exact same issue came up in LaFave v. Fairfax County, which I argued in the Fourth Circuit on May 7. Fairfax County's public parks consist of mostly woodlands twice the acreage of Manhattan. The County argued "not invalid in all circumstances" because tiny parts are used for schools and playgrounds. But the County banned guns in all of the public parks, not in discrete segments it deemed "sensitive." Not to mention that guns are separately banned in schools by laws specifically on point.
The bottom line: The Supreme Court in Heller held that D.C.'s ban on handguns was facially unconstitutional despite the fact that the District may have been able to draft a valid, narrower statute that outlawed only a subset of handguns (i.e., fully automatic handguns). Similarly, the Second Circuit in Christian should hold that New York's parks ban is facially unconstitutional, even if the State may have been able to draft a valid, narrower statute that outlawed firearms in only a subset of parks (i.e., urban parks).
And note that this is in no way inconsistent with Salerno: because a general ban on firearms in parks is unsupported by history, such a ban is invalid in all of its applications, just as a general ban on handguns is invalid in all of its applications. Of course, I disagree with the premise that history does support banning firearms in urban parks, but for the reasons explained here the Second Circuit need not reach that question to hold the State's ban on guns in all parks facially unconstitutional.
[UPDATE 7/12/25: Here's the refiled Complaint, which adds Jewish Voices for Peace and Students for Justice in Palestine as defendants, and which I expect adds factual allegations as well; I haven't reviewed it closely yet, but since the post below notes the plan to refile, I thought I'd add a link.]
The plaintiffs just withdrew the case, though their counsel reports that they plan to refile in the next two weeks with additional allegations. For now, I thought I'd post about the March opinion in the case by Judge Fernando L. Aenlle-Rocha, in Doe Jewish USC Faculty Member 2004 v. USC, which dismissed an earlier version of the Complaint:
Plaintiffs … bring claims relating to protests on Defendant's campus … regarding the Israel-Hamas war. Plaintiffs … allege Defemdant "invited, encouraged, aided, abetted, permitted, allowed, and subsequently appeased, enabled and negotiated with violent, sword and other weapon-wielding, Jew-hating Hamas-supporting campus terrorists antisemites … who infiltrated and overtook its Los Angeles campus … setting up tents and occupying [Defendant's] property under the [Defendant]'s watchful eyes."
Plaintiff Faculty Member brings this action in an "individual capacity as a Jewish USC Professor who suffered damages and harm as a result of [Defendant]'s conduct and as a representative on behalf of all other similarly situated Jewish Professors." Plaintiff Student sues "individually and on behalf of all others similarly situated."
The court rejected all of plaintiffs' claims:
Violation of Bane Act (Cal. Civ. Code § 52.1)[:] Plaintiffs allege Defendant violated the Bane Act by interfering with their right to practice freely their religion while on the USC campus. The Bane Act provides a civil cause of action against anyone who "interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of [California][.]"
Further, the plaintiff "must show the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts. Speech is insufficient to establish the requisite threat unless it includes a threat of violence." Additionally, a defendant must have the "specific intent to violate a constitutional right." …
Here, Plaintiffs do not allege plausibly a violation of the Bane Act, as they do not allege Defendant threatened, intimidated, or coerced Plaintiffs into believing that, if Plaintiffs practiced their religion on the USC campus, Defendant would commit violence against them. To the contrary, Plaintiffs allege the protestors threatened them and Plaintiffs reasonably believed the protestors would commit violence against Plaintiffs if Plaintiffs exercised their faith.
I'd like to again solicit submissions to our peer-reviewed Journal of Free Speech Law, and mention one of our great advantages: We can publish quickly (by the standards of academic journals), if that's what you'd like.
Our most recent article, for instance, was submitted to us April 8. We require submissions that are exclusive to us, but we promise an answer within 14 days; in this instance, we accepted it on April 16, and passed along the reviewer comments to the author. (We offer such comments whether the article is accepted or rejected, and I understand they can be helpful to authors regardless of our decision.)
We ask our authors to have the articles cite-checked by their own research assistants (though if the author doesn't have access to an RA, we are generally able to help with that), and we give authors time to polish up the article some more, if they'd like. Here, the author took a bit over a month to do that—no problem from our perspective—and gave us a revised draft May 22. We then got the author an edit from one of our Executive Editors; the author got the edit back to us; we got the author a proofread from our proofreader; the author got that back to us; and then we did a final proofread, which the author got back to us in turn.
On June 24, we published the article, basically 2½ months after we received it. (Some articles might take longer, for various reasons, but this was 40 pages, a roughly average-length article.) And we could have published it even earlier, if the author had wanted to, since more than a month of the time was on the author's end. Of course, there's nothing wrong with the author taking some time to polish up the piece—the point is simply that we are equipped to publish quickly, if the author wants.
To my knowledge, many top student-edited journals are shut down for the Summer, and won't review manuscripts until August. That means the manuscripts probably wouldn't be published until next May, or even later. But if you submit to us now, and want to publish quickly, you can have the article out this September, or possibly even earlier.
Some more details: The journal is now four years old, and has published over 100 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.) The articles have been cited so far in 11 court cases, over 325 articles, and at least 100 briefs. And note that all the articles have only had four years or less to attract these citations.
From our motion for a preliminary injunction, filed today by my lawyers, Susan L. Kay, Jennifer Safstrom, and Ryan Riedmueller of the Vanderbilt Law School Stanton Foundation First Amendment Clinic:
American citizens enjoy a First Amendment right of access to judicial records that state and local governments may not restrict unless the restriction withstands constitutional scrutiny. See Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002). The Tennessee Public Records Act ("TPRA") includes a provision that restricts access to public records, including judicial records, to residents of Tennessee. Tenn. Code Ann. § 10-7-503(a)(2)(A). The First Amendment is a fundamental right enjoyed by all Americans and cannot be abridged by a state statute based on an individual's state citizenship.
Additionally, the Privileges and Immunities Clause of the United State constitution prohibits states from burdening a fundamental right on the basis of state citizenship. Because the TPRA restricts rights guaranteed by the United States Constitution on the basis of state citizenship, it is unconstitutional.
On February 5 and March 5, 2025, Plaintiff Eugene Volokh, a California resident, was impermissibly denied access to public judicial records by Defendants because of his residency status. {Mr. Volokh [had] submitted a request … via email for records filed in Garramone v. Curtsinger, No. 22-CV-602, a case in Williamson County Circuit Court.} {In this case, one party requested an order of protection from the court against the opposing party based on activities the opposing party claimed were protected by the First Amendment. As a leading First Amendment scholar, especially within the context of harassment, Mr. Volokh requested documents from this case to assist his research.} …
Our motion argues that the right of access to judicial records is a First Amendment right; the Sixth Circuit had already recognized this in Detroit Free Press, but we go through the Supreme-Court-prescribed analysis in any event:
My essay on the subject, initially presented in late March at a conference at Yale Law School, is now up at Balkinization, together with various other essays from the same conference. Unfortunately, the footnote links don't work with Balkinization's posting software, so I thought I'd include it below; note that I've posted earlier versions of this essay here before.
[* * *]
The Crisis of the Media Environment
Eugene Volokh
Senior Fellow, Hoover Institution, Stanford; Professor of Law Emeritus, UCLA[1]
The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: "How can and should the media system be reformed?"
I'm speaking, of course, of the campaign to conceal President Biden's mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement's attempt to persuade the people to elect her.
Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump.[2] Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. "Democracy Dies in Darkness," the Washington Post tells us. It appears that the Democratic Party's prospects died in this particular darkness.[3]
The single most consequential fact of the 2024 Presidential campaign had thus been largely hidden for a long time, including from (and, perhaps unwittingly, by) the media organizations whose job it is to inform us. Indeed, this was a fact not just of immense political significance, but also central to national security: If President Biden was indeed cognitively impaired, that bore on his ability to make decisions as President, not just his ability to be re-elected.[4]
I am pleased to announce that leading legal scholars and Supreme Court litigators Neal Katyal and Michael McConnell have joined the litigation team for VOS Selections, Inc. v. Trump- the case challenging Trump's abusive "Liberation Day" tariffs filed by the Liberty Justice Center and myself. The support of prominent figures from opposite sides of the political spectrum is a testament to the strength and importance of this case.
Neal Katyal the Paul Saunders Professor at Georgetown University and the former Acting Solicitor General of the United States under the Obama Administration. He is a leading left-of-center constitutional law scholar, and has argued over fifty cases before the US Supreme Court.
Michael McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, a Senior Fellow at the Hoover Institution, and one of the nation's leading conservative originalist constitutional law scholars. He is a former federal court of appeals judge, and has argued sixteen cases before the Supreme Court.
It is an honor to have Michael and Neal with us for the next phase of this case!
The Liberty Justice Center has issued a statement on this occasion, which I reprint below:
On June 25, the Liberty Justice Center announced that leading appellate lawyers and constitutional scholars Michael McConnell and Neal Katyal and their law firms have joined LJC's legal challenge to the Trump Administration's "Liberation Day" tariffs, signing on as co-counsel in the lawsuit.
The Liberty Justice Center and co-counsel Ilya Somin filed a lawsuit challenging the tariffs on April 14, arguing that the tariffs represent a dangerous and unlawful violation of the separation of powers. In a major victory for the separation of powers, the U.S. Court of International Trade issued a unanimous ruling on May 28, finding the tariffs illegal and issuing a permanent injunction banning their enforcement.
After the U.S. Court of Appeals for the Federal Circuit granted a motion by the Trump Administration to temporarily stay the injunction pending the appeal, the Liberty Justice Center announced that Judge Michael McConnell, Senior of Counsel at Wilson Sonsini Goodrich & Rosati, and Neal Katyal, Head of Supreme Court and Appellate Practices at Milbank LLP and former Acting Solicitor General of the United States, have formally joined V.O.S. Selections, Inc. v. Trump.
"More than any other case challenging executive action, the tariff cases combine fundamental principles of structural constitutional law with immense consequences for the economy," said Michael McConnell. "It is an honor for me and my colleagues at Wilson Sonsini to join in this effort."
"I'm thrilled to join the Liberty Justice Center and Michael McConnell in this vital litigation," said co-counsel Neal Katyal. "The President claims that a 1977 law, IEEPA, justifies his sweeping, unilateral tariffs. I used to administer IEEPA for the government, and no one ever thought it authorized what he is doing here. I've been privileged to serve as counsel in many of the biggest executive power challenges over the last two decades, both for and against the government. These presidential actions fall on the wrong side of the line. I look forward to vindicating our Founders' view of the separation of powers, and to restoring the primacy of Congress over such major questions."
The Liberty Justice Center is pleased to welcome Judge McConnell and Neal Katyal to the team and looks forward to continuing the legal battle against the unconstitutional "Liberation Day" tariffs.
Amicus briefs are due no later than July 8. The U.S Court of Appeals for the Federal Circuit will hold a hearing in the case on July 31, which will be available via livestream.
Immediately following the hearing, the Liberty Justice Center will host a media roundtable to discuss the next steps in the case and answer questions by members of the press. To RSVP for this roundtable, visit the Liberty Justice Center's media reservations page here.
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