<UPDATE 5/19 Just a note to draw readers' attention to the 300+ comments that this post has received. It is a good illustration of one of the things I like most about the VC - I'm not aware of another blog that can generate as intelligent and informative a conversation. Not that every comment is a gem, but the overall level of the discussion is rather remarkably high and the tone is mostly respectful. That is not always the case here; some posts dealing with controversial matters generate comments that spiral into some nasty ad hominem mud-slinging. But at its best it's much closer to good old-fashioned argument/debate, and I find I can often learn a fair bit from it.>
At oral argument Thursday in Trump v. Casa, Inc., the "nationwide injunction" case, Justice Kagan put her finger on the question that is, in my view, decisive: If district courts do not have the ability to issue "nationwide injunctions"* against executive misbehavior, i.e., if they are limited to injunctions applicable only to the specific party/ies challenging the government's actions in the cases before them, the courts cannot serve as an effective check on unlawful executive action.
*These injunctions might better be labelled "non-party injunctions" rather than "nationwide injunctions." Listening to the oral argument, it appears that what gives some Justices heartburn with respect to these injunctions is not that they operate "nationwide" (i.e., outside of the geographic district within with the court is authorized to act) but that they purport to affect the rights of non-parties.
Justice Kagan asked the Solicitor General to assume, just for argument's sake, that the Birthright Executive Order is unlawful, on the merits** - that it is an unconstitutional exercise of executive power contravening both the 14th Amendment and a number of Supreme Court precedents (as most of the courts that have looked at it have already concluded).
**This question about the merits - whether the Birthright E.O. is or is not a constitutional exercise of the President's power - was not before the Court at this point, because the government, which was the losing party in the court below, sought SCOTUS review only on the question of whether the court's injunction was valid, not on the underlying merits of the plaintiffs' claim. That turns out to be a rather interesting omission - see below.
If you are uncomfortable making this assumption, because you are convinced that that the Birthright E.O. is not an unconstitutional exercise of presidential power, feel free to craft your own hypothetical here; think of something that a President could do that would be, in your view, clearly and incontrovertibly unlawful: An order requiring, say, the State Department to fire all Jews and African-Americans in its workforce; an order placing the words "Christ is our Savior" on one-dollar bills; an order declaring that ICE can execute warrantless searches whenever it deems them to be in the public interest. Just suppose.***
***Justice Sotomayor used this hypothetical: "A new president orders that because there's so much gun violence going on in the country and he says, 'I have the right to take away the guns from everyone,' and he sends out the military to seize everyone's guns."
The ruling held that migrants detained under AEA had not been given adequate notice of their potential deportation. It also reflects the Court's growing distrust of the Trump Administration.
Today, in AARP v. Trump, the Supreme Court issued a ruling blocking deportation of a group of Venezuelan migrants the Trump Administration had been trying to use the Alien Enemies Act of 1798 deport to imprisonment in El Salvador. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government."
The Supreme Court's latest ruling doesn't address the issue of whether the administration's invocation of the AEA is legal, though multiple lower courts have ruled it is not, because there is no war, "invasion," or "predatory incursion" going on (only one badly flawed ruling goes the other way on "predatory incursion"). Instead, a 7-2 majority holds only that Venezuelan detainees slated for deportation under the AEA in the Northern District of Texas are entitled to a temporary injunction blocking deportation, because they were not granted adequate notice:
[I]n J. G. G. [the Court's first ruling on Trump AEA deportations], this Court explained—with all nine Justices agreeing—that "AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief " before removal. 604 U. S., at ____ (slip op., at 3). In order to "actually seek habeas relief," a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief. The Government does not contest before this Court the applicants' description of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion that the Government was poised to carry out removals imminently. The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, see Abrego Garcia v. Noem, No. 25−cv−951 (D Md.), ECF Docs. 74, 77, where it is alleged that detainees face indefinite detention, see Application for Injunction 11. The detainees' interests at stake are accordingly particularly weighty. Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster. But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose.
To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.
In a highly unusual earlier ruling in this same case, the Supreme Court literally issued an order blocking deportation in the middle of the night. The per curiam majority opinion in today's ruling recounts the circumstances of that previous episode, and its relevance to the current decision. The combination of that earlier ruling and today's decision reflects the majority's growing distrust of the Trump Administration's handling of AEA - and perhaps other - deportations. Note the reference to the Administration's refusal to return an illegally deported migrant in the Abrego Garcia case.
I could be wrong, and my record as a Supreme Court prognosticator is far from perfect. But I think when the Court does review the Administration's use of the AEA more fully, they are unlikely to be deferential. In a concurring opinion, Justice Kavanaugh argues the Court should immediately move to resolve the broader issues at stake, in this very case. All or most of the other justices must have disagreed. But it seems likely these issues will return to the Court sooner or later.
In a forceful dissent joined by Clarence Thomas, Justice Samuel Alito disputes the majority's characterization of the facts (contending, among other things, that deportation wasn't really imminent) and argues the Supreme Court lacked jurisdiction to consider the case at this time. I will not go into these points in detail. But I think the majority's account is more persuasive, and also that the Administration does not deserve the benefit of the doubt in such matters, given their earlier shenanigans in Abrego Garcia, and at least one of the AEA cases.
Justice Alito also argues that class action certification is inappropriate in a habeas case, like this one. I will leave that issue to habeas and class action experts, except to note that multiple lower courts have certified habeas classes in AEA cases, and doing so may be the only way to ensure meaningful due process for detained migrants threatened with deportation.
For the moment, as Georgetown Prof. Steve Vladeck notes,"[b]ecause lower courts have blocked use of the act in every other district in which the president has sought to invoke it, that means it's effectively pausing all removals under the act until the 5th Circuit – and, presumably, the Supreme Court itself – conclusively resolves whether they're legal and how much process is due if so." The legal battle over Trump's invocation of the AEA will surely continue, and I will have more to say about it in due time.
The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.
What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the "rule of law."
I will have much more to say about this order in due course.
This afternoon, the Supreme Court granted an application for an injunction against the federal government barring the summary removal of Venezuelan nationals alleged to be members of Tren de Aragua (TdA) under the Alien Enemies Act. By a 7-2 vote, the justices concluded that the detainees were entitled to greater process than they had been provided, and that the U.S. Court of Appeals for the Fifth Circuit erred in dismissing the detainee's claims for lack of jurisdiction. The Court further treated the application for an injunction as a petition for certiorari, granted the petition, and remanded the case back to the U.S. Court of Appeals for the Fifth Circuit for further proceedings.
The opinion for the Court in A.A.R.P. v. Trump was per curiam (the fifth such opinion this term). Justice Alito dissented, joined by Justice Thomas, arguing that the Court lacked jurisdiction and, even assuming jurisdiction, the applicants failed to satisfy the requirements for injunctive relief. Justice Alito also objected to granting certiorari before judgment given the lack of lower court decisions on the merits.
Here's how the opinion sets up the questions before the Court:
The President has invoked the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization. See Presidential Proclamation No. 10903, 90 Fed. Reg. 13033 (2025). Applicants are two detainees identified as members of TdA and a putative class of similarly situated detainees in the Northern District of Texas. All of the alleged TdA members in the putative class are currently being held in U. S. detention facilities. In the application before the Court, the detainees seek injunctive relief against summary removal under the AEA.
In recounting the facts, the Court highlights how close it appears some of the applicants came to being deported without adequate process. The way these facts are recounted suggests that at least some of the justices are increasingly skeptical of the Justice Department's representations and the extent to which administration attorneys are attempting to comply with court orders and legal requirements in good faith. (It is no accident the opinion makes reference to Abrego Garcia, and the federal government's representation that no federal court has jurisdiction to fix the federal government's error in deporting him to El Salvador.) This would seem to confirm that a majority of the justices are no longer willing to automatically grant the presumption of regularity to the Trump Administration on deportation-related matters, and this may affect the ability of the Solicitor General to advance Administration positions in other cases.
As in several other recent cases, the Court's opinion highlights its disagreement with the Fifth Circuit.
The Fifth Circuit erred in dismissing the detainees' appeal for lack of jurisdiction. Appellate courts have jurisdiction to review interlocutory orders that have "the practical effect of refusing an injunction." . . . A district court's inaction in the face of extreme urgency and a high risk of "serious, perhaps irreparable," consequences may have the effect of refusing an injunction. . . . Here the District Court's inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm. Accordingly, we vacate the judgment of the Court of Appeals.
The Court then goes on to reiterate the basic constitutional point that Due Process is guaranteed to persons, and not merely citizens or those lawfully present in the country.
"[T]he Fifth Amendment entitles aliens to due process of law in the context of removal proceedings." Trump v. J. G. G., 604 U. S. ___, ___ (2025). . . "Procedural due process rules are meant to protect" against "the mistaken or unjustified deprivation of life, liberty, or property." . . . We have long held that "no person shall be" removed from the United States "without opportunity, at some time, to be heard." . . . Due process requires notice that is "reasonably calculated, under all the circumstances, to apprise interested parties" and that "afford[s] a reasonable time . . . to make [an] appearance." . . . Accordingly, in J. G. G., this Court explained—with all nine Justices agreeing—that "AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief " before removal. , , , In order to "actually seek habeas relief," a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.
None of this means the applicants will not ultimately be removed from the country, however. Rather, any removal will only come after they have received the process to which they are due. As the Court notes further:
To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated. . . . We did not on April 19—and do not now—address the underlying merits of the parties' claims regarding the legality of removals under the AEA. We recognize the significance of the Government's national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. . . .
And as if to make the point clear, the opinion ends noting "The Government may remove the named plaintiffs or putative class members under other lawful authorities."
As for what comes next, the Court explains:
The judgment of the Fifth Circuit is vacated, and the case is remanded to the Fifth Circuit. In resolving the detainees' appeal, the Fifth Circuit should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs' underlying habeas claims that the AEA does not authorize their removal pursuant to the President's March 14, 2025,Proclamation, and (2) the issue of what notice is due, as to the putative class's due process claims against summary removal. The Government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
Justice Kavanaugh also wrote a separate concurrence, agreeing with the Court's decision to grant the injunction, but disagreeing with the Court's decision to remand the case back to the Fifth Circuit. In Justice Kavanaugh's view, the Court should have granted certiorari, ordered expedited briefing, and resolved the underlying legal issues.
From today's opinion by Judge William Sessions in Ozturk v. Trump (D. Vt.), providing the written explanation for a May 9 order granting bail to Ozturk [UPDATE: you can read Ozturk's op-ed here]:
To briefly summarize, Ms. Ozturk has argued that her arrest and detention are retaliation for her co-authorship of an op-ed in a student newspaper. The government has identified her op-ed, and potentially related associations, as the precipitating factor for her visa revocation. As the Court cited in its April 18, 2025, Opinion and Order, then-candidate Trump reportedly threatened to deport foreign students involved in campus protests. And Secretary of State Marco Rubio, in response to press inquiries about Ms. Ozturk's arrest, opined that Ms. Ozturk's activities "meet the standard of what I've just described to you: people that are supportive of movements that run counter to the foreign policy of the United States" and that detention was "basically asking them to leave the country."
Arrest and detention, let alone termination of status, are not a natural consequence of visa revocation. Ms. Ozturk has presented credible evidence to show that similarly situated individuals historically have not been detained following visa revocation or termination of status.
To date, the government has neither rebutted the argument that retaliation for Ms. Ozturk's op-ed was the motivation for her detention nor identified another specific reason for Ms. Ozturk's detention, arguing instead that such decisions are committed to the discretion of the executive branch. While it is uncontested that the government has discretion in this area, that discretion is not accompanied by the authority to violate the Constitution.
The Court need not decide at this stage whether Ms. Ozturk's detention actually constitutes a First Amendment violation. As the April 18 opinion established, Ms. Ozturk's op-ed carries all the hallmarks of protected speech on public issues, and it does not fall into any recognized exception…. The Court therefore concluded that Ms. Ozturk has presented, at the very least, a substantial claim of a First Amendment violation.
Many people have worried that the Trump administration might refuse to respect a Supreme Court decision. In yesterday's oral argument in the birthright citizenship emergency order case, Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create. This is a major concession to judicial supremacy, and a major stand-down on departmentalism, by the Trump administration.
What I did not fully understand until yesterday's oral argument is why this concession is needed to make the government's argument against universal injunctions work. It is, as I explain below, the price the Trump administration must pay to get relief from universal injunctions.
Whether the Trump administration can be trusted to deliver on Sauer's concession is a very fair and open question, as I discuss at the end of this essay. But in the main thrust of the essay I will explain the logic and potential significance of the concession. I think the Court in its opinion will latch on to the concession, in a fashion reminiscent of Marbury, to give the government some degree of relief from universal injunctions even as the Court asserts the government-acknowledged supremacy of its precedents vis-á-vis the executive branch.
The main issue addressed in yesterday's birthright citizenship oral argument before the Supreme Court was whether federal courts should have the power to issue nationwide injunctions against illegal government policies, as opposed to injunctions limited to the parties to the case, or perhaps to a particular state or local government. As I see it, there is a simple, but powerful reason why courts must have the power to issue such injunctions, at least in some cases. In many situations, there is no other way to stop widespread illegality, especially that perpetrated by the federal government. Nationwide wrongs require a nationwide remedy.
Justice Ketanji Brown Jackson put it well in yesterday's argument:
[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a "catch me if you can" kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.
Justice Kagan says let's assume for the purpose of this that you're wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law
This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government's illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.
Moreover, even if all current victims file lawsuits and win, the unconstitutional policy will remain in place with respect to future victims (in this case, future children born to undocumented immigrants and those in the US on temporary visas). Thus, the illegality - and the need for endless lawsuits to combat it - will continue on into the indefinite future.
Imagine if school desegregation litigation rules required each individual black student (or her family) to file a separate lawsuit in order to be able to attend a racially integrated school. Black students whose families don't file a lawsuit can kept in segregated schools, even if courts rule they are unconstitutional. By that "logic," we might well still have legally segregated public schools to this day.
As discussed in the oral argument, these problems can sometimes be partially overcome by class action suits. But class action certification rules will often make it difficult or impossible to include all the victims of a large-scale injustice in a single class, or indeed in any class. Moreover, the logic of the government's case against nationwide injunctions is that courts have no power to compel defendants to respect the rights of third parties. By that reasoning, class actions are also suspect. After all, they necessarily include remedies for third parties (members of the putative class who didn't file a lawsuit themselves, and in many cases may not even know about the class action's existence).
Perhaps such injustices must be accepted if that is clearly required by the text and original meaning of the Constitution. But it isn't. Article III of the Constitution states that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States," and "to Controversies to which the United States shall be a Party." Such cases - and especially "controversies" - can obviously sometimes raise issues that go beyond the interests of the particular people who filed the lawsuit in question. And, as the amicus brief by legal historians effectively summarizes, broad injunctions that extend to third parties (sometimes even covering thousands of people) have been imposed by courts throughout American history.
For reasons summarized in a previous post, I am not much impressed by the argument that it's dangerous if one rogue federal judge can impose an injunction blocking a policy nationwide. If the judge is indeed a rogue outlier, and his or her ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. Appellate courts have substantial discretion to swiftly stay injunctions, when needed. It is much less of a burden for the federal government - with its vast resources - to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights. And, again, that's especially true if many of the victims of the government's illegal actions are poor or otherwise unable to easily file a suit.
I am also not impressed by the Trump Administration's argument that there is an "epidemic" of an especially large number of nationwide injunctions blocking their poliies. As I explained to the New York Post when asked about this point:
Trump administration attorneys argued in a petition to the Supreme Court that "Universal injunctions have reached epidemic proportions since the start of the current Administration."
"What we have is an epidemic of nationwide illegal actions by this administration, and in fairness, to some degree by the previous administration as well," Somin argued.
"If you engage in rampant illegality that's nationwide in scope, then you can expect to get nationwide remedies imposed against you."
Nationwide wrongs require nationwide remedies. For those keeping track, I also supported some nationwide injunctions against the Biden Administration, as in the case of the student loan forgiveness litigation.
In fairness, I am, at this point, not a completely disinterested observer when it comes to nationwide injunctions. As I told the Post, the Liberty Justice Center and I are seeking a nationwide injunction in the lawsuit we filed against Trump's "Liberation Day" tariffs. Like the birthright citizenship cases, our case challenges a large-scale illegal policy that victimizes millions of people, making a universal injunction the only feasible remedy that can fully put an end to the illegality.
But, for what it is worth, I have been a supporter of universal injunctions since long before I became involved in this case. And I am doing the tariff case pro bono. So it cannot be said that my support for universal injunctions is based on narrow self-interest - except in so far as I (like most Americans) will benefit from lower prices for foreign products, if the Trump tariffs are struck down!
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: Humboldt County, Calif. fines people millions of dollars for things they didn't do because it doesn't care if they are innocent. For instance, it fined IJ clients Corrine and Douglas Thomas over $1 mil a mere six days after they bought their home (with a clean title) because the county believes a prior owner grew cannabis. Now, IJ is asking the Supreme Court to revisit its 1916 decision that the Seventh Amendment's guarantee of a jury trial in suits at common law—a bulwark against tyranny for 800 years—does not apply to the states. As it stands, the county need not present its case to a jury of the Thomases' peers; rather, it'd be heard by lawyers hired by Humboldt County. Phooey!
New on the Short Circuit podcast: In jail without trial and death row without all the DNA tests.
Boston police officer is found dead in the front yard of his friend's house amid a nor'easter. Investigators conclude that the man's girlfriend ran him over with her car and left him to die. (Perhaps you've seen the docuseries or read the Vanity Fair longreads.) A jury hangs at the first trial, and her second trial is now under way. Throngs of demonstrators (both pro- and anti-girlfriend) have shown up for the trials, leading the state court to create a buffer zone around the courthouse. First Circuit: And to the extent that that prohibits quiet, offsite demonstrations on public property directed toward non-trial-participants, that raises some First Amendment problems.
Buffalo, N.Y. detective feeds nonpublic information about a 2004 double murder to a schizophrenic man, who then "confesses" and spends over 10 years in prison before being exonerated. (The real culprits have since been caught and convicted.) Second Circuit: No need to disturb the $6.5 mil verdict against the detective.
Newburgh, N.Y. man buys a house in 2006 but falls behind on his taxes. After several years of paying some back to the city he can't keep up and it forecloses on the place, with him still owing over 92 G's in tax. The city turns around and sells it for a tidy $350k. Does it owe him the difference? Second Circuit: It might. Reversed and remanded. Read More
From the White House statement; congratulations to Josh on the appointment! The list also includes:
Francis Beckwith … Professor of Philosophy & Church-State Studies, Affiliate Professor of Political Science, and Associate Director of the Graduate Program in Philosophy at Baylor University…..
Jason Bedrick … a Research Fellow in the Center for Education Policy at The Heritage Foundation ….
Gerald Bradley … professor of law at the University of Notre Dame ….
Alyza Lewin … President of The Louis D. Brandeis Center for Human Rights Under Law … [and] President of the American Association of Jewish Lawyers and Jurists from 2012 – 2017.
Kristen Waggoner … CEO, president, and general counsel of Alliance Defending Freedom ….
The agency may be able to adopt a bank-shot strategy to preclude most (but not all) greenhouse gas regulation under the Clean Air Act without contesting basic climate science.
Environmental Protection Agency Administrator Lee Zeldin announced that the agency will consider rescinding the so-called endangerment finding that triggers the regulation of greenhouse gases under the Clean Air Act. In a prior post, I explained why this is a fool's errand, and elaborated on some of the relevant points in this webinar.
My prior comments assumed that the agency was planning to do what Zeldin and others had publicly suggested: Rescind the primary finding that the emission of greenhouse gases "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Given the precautionary nature of this language, taking this course would have required the Agency to disavow virtually everything it has said in the past 35 years about the potential consequences of climate change, among other things. It would be a morass.
Yet if the EPA's primary goal is to rescind greenhouse gas regulations imposed on stationary sources, and prevent the adoption of new such regulations, it has an alternative approach--an approach that is more of a targeted bank shot than a frontal assault on the endangerment determination and, judging from this E&E News story, it is a potential approach that is getting more attention.
The initial endangerment finding was made under Section 202 of the Clean Air Act, which governs motor vehicles. Under this provision, the EPA is obligated to adopt emission standards for pollutants about which such a finding is made. Other provisions of the Act have similar language, but they are not all the same, and the differences in the language found in different opinions could matter.
Section 231, governing aircraft, has identical endangerment language to Section 202. Section 111, governing stationary sources (including power plants), on the other hand, has slightly different language. Under 111, the EPA is required to adopt regulations for a category of sources if the category:
causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.
Here, unlike under Section 202 and 231, it is not enough that the emissions in question "contribute" to potentially harmful pollution. The emissions, from the source category in question, must contribute significantly. In other words, even taking endangerment as a given, there are some sources of greenhouse gas emissions that need not be regulated under Section 111 because their contributions to the accumulation of greenhouse gases in the atmosphere is not significant enough to justify action.
What this means is that the EPA could seek to disarm the Clean Air Act's regulatory threat to stationary sources by defining what it means to contribute "significantly" so as to exclude most (if not all) such source categories as those that must be regulated. This is not a sure-fire strategy, as it may be difficult to argue that power plants in particular are not a "significant" contributor to climate change. Power plants are responsible for approximately 30 percent of domestic greenhouse gas emissions. By contrast, most other source categories are far smaller, and would be easier to exclude, particularly if the EPA emphasizes that the significance of a source category's contribution to climate change must be evaluated on a global basis (and the fact that the United States produces a declining share of global greenhouse gas emissions).
The virtue of this approach for EPA is that it does not require contesting basic claims about climate science or reversing the agency's prior interpretation of that science or the meaning of Section 2020. Yet there are risks. One in particular is that it would require the agency to reverse course on what constitutes a "significant" contribution of greenhouse gases. Back in 2021, the Trump EPA said this applied to any source responsible for more than three percent of emissions. The EPA is no longer eligible to receive Chevron deference on the meaning of this statutory language, and its change in position will reduce the amount of respect its new interpretation receives.
We should soon see whether the EPA is going to adopt this more targeted approach to cutting back EPA regulation of greenhouse gases, or whether it will insist on running headlong into the maw of the original endangerment finding. The agency's choice should reveal quite a bit about the extent to which it is prioritizing meaningful and sustainable deregulatory initiatives over blunderbuss, base-pleasing initiatives.
From today's decision by Judge Patrick Schiltz (D. Minn.) in Miller v. Macone:
This matter is before the Court on plaintiff's motion to lift the filing restriction, which, absent court permission, restricts plaintiff from filing anything but a single notice of appeal.
Plaintiff's motion is denied, as plaintiff's voluminous flow of frivolous filings shows no sign of abating. For example, the packet of materials plaintiff recently submitted included a "Motion to Protect Global Media Defenders of Truth and to Compel the Transparent Identification of All Public Satanic Allegiances" and an "Emergency Motion to Halt Unjust Wars, Defund Global Conflict, and Protect the Human Race under Natural Law and Spiritual Covenant." The Court will not permit plaintiff to consume court resources with such bizarre and nonsensical filings.
I blogged earlier this week about AI hallucinations in court filings by prominent law firms, as well as an incorrect citation in an expert's declaration stemming a lawyer's use of AI to try to format the citation. But I thought I'd blog a bit more about AI hallucinations in court filings, just to show how pervasive the problem is: I'm seeing court decisions about this every few days. And those decisions are likely just the tip of the iceberg, since many hallucinations won't be noted in court decisions, and the great majority of court decisions are state trial court decisions that don't show up on Westlaw.
Here's an example: In Judge Margaret Strickland's decision last week in Dehghani v. Castro (D.N.M.), a filing "cited to numerous cases that Respondents were 'unable to locate.'" When asked about this by the Magistrate Judge (Damian Martinez), the petitioner's lawyer explained "that he 'did not have the time to devote to the project'" and had used "a company called LAWCLERK" to find a contract attorney who would write the filing.
Mr. Millan [the petitioner's lawyer] further advised that he "did not read the caselaw or verify the cases used in support of the propositions [in the Brief], trusting that the licensed lawyer from Lawclerk would perform her work in an ethical and competent manner." …
Mr. Millan confirmed that the cases listed by the Court in its third Order to Show Cause do not exist. Specifically, Mr. Millan stated that when his staff asked Ms. Lewis [the contract lawyer] for PDF copies of the cases she used in the purchased response, she provided seven cases. A review of the cases provided revealed that the case names and citations did not match those listed in Petitioner's Response to the second Order to Show Cause.
Although Petitioner's response states that the case citations are corrected, in the March 26, 2025 hearing, Mr. Millan stated the cases he listed as corrected citations were cases that he believed most closely reflected the non-existent cases cited in the Petitioner's March 7, 2025 Response. Mr. Millan's response further explains that the remaining thirteen cases cited in his purchased response to the second Order to Show Cause "do not support the propositions stated in the quoted language and are not from the cited cases."
Justice Sotomayor is pretty predictable. She walks into oral argument with a set of questions she wants to ask, and she will keep asking them, whether or not she gets the answer she wants. I imagine advocates get frustated, but that is part of the game.
During the birthright citizenship cases, Justice Sotomayor asked the same line of questions several times--apparently she thought it was clever. To illustrate the limits of the government's position concerning nationwide injunction, she would change the hypo: what would happen if the government sought to confiscate every gun in America; would every gunowner have to bring an individual law suit to seek relief?
Page 13: JUSTICE SOTOMAYOR: --so, when a new president orders that because there's so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone, then people --and he sends out the military to seize everyone's guns --we and the courts have to sit back and wait until every named plaintiff gets --or every plaintiff whose gun is taken comes into court?
Page 41: JUSTICE SOTOMAYOR: If we're afraid that this is or even have a thought that this is unlawful executive action, that it is Congress who decides citizenship, not the executive, if we believe, some of us were to believe that, why should we permit those countless others to be subject to what we think is an unlawful executive action, as unlawful as an executive taking the guns away from every citizen?
Page 44: JUSTICE SOTOMAYOR: --it got rejected repeatedly. We can go into the history of citizenship, but I still go back to my question. You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly, indisputably unconstitutional act, taking every gun from every citizen, we couldn't stop that.
Does Justice Sotomayor really want to know what the remedy would be if the government confiscated everyone's gun? This remedy would not involve Rule 23.
Nearly 250 years ago, King George III and General Gage tried to confiscate the firearms from the Americans. What happened next? Lexington and Concord, the Shot Heard Round the World. As best as I can recall, the patriots did not go to a Court of Chancery to seek an equitable remedy.
We have a similar story in Texas history. During the Texas Revolution, the Mexican Army demanded that the Texians in the City of Gonzales surrender their cannon. What did the Texians say? Come and Take It! The remedy here was not equitable; it was belligerent. The Texians did not reply with a canon of construction; they replied with a cannon of destruction. This was the Lexington of Texas. And the Battle of Gonzales led to the Battle of the Alamo, which led to Texas Independence. Sensing a pattern of what happens when the government tries to disarm the people?
I took this photo during my visit to the museum in Gonzales.
The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.
There is an important lesson to be learned here. Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems.
During oral argument in the birthright citizenship cases, Justices Kagan and Barrett seemed very troubled by Solicitor General Sauer's description of the Department of Justice's "general" policy concerning circuit precedent. It seems pretty clear that the Solicitor General was talking about DOJ's policy concerning intracircuit nonacquiescence. What is intracircuit nonacquiescence, you might ask? I discuss this topic in my 2019 article in the Georgetown Law Journal, The Irrepressible Mythof Cooper v. Aaron:
Despite these criticisms, there have been efforts to extend the principle of judicial universality to the lower courts—what oxymoronically might be called "inferior universality." At various times, the U.S. government has asserted a policy known as "intracircuit nonacquiescence." Under this controversial doctrine, the Executive Branch directs agencies to disregard certain unfavorable circuit precedent, even if their decisions will ultimately be appealed in that circuit.183 The courts have uniformly rejected this practice for flouting circuit law.184
183. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 687 (1989) (defining "intracircuit nonacquiescence" as a circumstance "when the relevant venue provisions establish that [judicial] review will be to a particular court of appeals and [an administrative] agency nonetheless refuses to follow, in its administrative proceedings, the case law of that court"); Note, Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality, 99 HARV. L. REV. 847 (1986).
184. See Estreicher & Revesz, supra note 183, at 699–704; see also Collateral Estoppel and Nonacquiescence, supra note 183, at 856–57.
Yet, despite pushback from the courts, intracircuit non-acquiescence remains the Department of Justice's policy. And I can prove it. In March 25, 2010, the Office of Legal Counsel issued an opinion concerning the Obama Administration's decision to no longer defend the Defense of Marriage Act. Who was the Solicitor General at the time? Elena Kagan. This topic was actually a big deal at her confirmation hearing: DOJ filed a petition for cert before judgment in Windsor, even though the government agreed with the ruling declaring DOMA unconstitutional.
OLC Head David Barron, now a First Circuit Judge, stated the issue plainly:
As explained below, this conclusion accords with the longstanding position of this Office, and the consistent, publicly declared position of the Executive Branch, that an executive agency may "nonacquiesce" in a court of appeals ruling—a practice whereby the agency, despite an adverse court of appeals decision, continues to act in accordance with its own contrary interpretation of the law with respect to persons who were not parties to the judgment. The Executive Branch's traditional view that nonacquiescence is permissible includes even "intracircuit" nonacquiescence, or nonacquiescence in situations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision.5
FN5: 5 See, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Sub-comm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General, Civil Division) ("Preston Testimony"); see generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692–718 (1989) (describing agency practice).
There you have it. DOJ has a longstanding practice of nonacquiescence. Consider a classic example. The Second Circuit issues a ruling concerning the Social Security Act. Even though that judgment only binds a single claimant, that precedent may affect thousands of individual claimants. The executive branch will chose to either seek en banc, or certiorari. In the process, the executive will not acquiesce to the circuit precedent, and continue applying the earlier precedent to the thousands of other claimants. This has long been DOJ's policy. Solicitor General Rex Lee wrote an influential opinion on this topic.
This issue arose again during the Obama Administration. In the run-up to King v. Burwell, the Department of Justice stated that it would limit any adverse D.C. Circuit precedent to the named parties.
Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest!
[Mike Carvin representing] The plaintiffs shot back, incredulous that the government had an "apparent intention to lawlessly flout this Court's binding order." In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to "vacate the IRS Rule" in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.
The DOJ letter stated the issue plainly: in the absence of class certification, the relief will be limited to the named parties.
We respectfully submit a supplemental authority that bears on plaintiffs' assertion, made for the first time in reply, that "[i]t does not matter that this 'is not a class action'" and that the Court could extinguish the tax-credit claims of individuals who live in "states like Texas." Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, "before an absent class member's right of action [is] extinguishable due process require[s] that the member 'receive notice plus an opportunity to be heard and participate in the litigation'" and "'an opportunity to remove himself from the class.'" Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a "constitutional requirement" that a "'named plaintiff at all times adequately represent the interests of the absent class members.'" Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.
But luckily the Constitution supplies a contingency plan, even if the administration doesn't know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court's judgment — but only with respect to the four plaintiffs who brought the suit.
This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court's reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue. . . .
There are legal wrinkles, of course. Lower courts have sometimes claimed legal authority to invalidate a regulation (which is at issue in this case) even for parties who aren't before the court. And some employers might be able to bring lawsuits that would call their employees' subsidies into question. But the administration has already raised legal defenses to those potential problems in other lawsuits and could press those defenses here, too.
In hindsight, Baude was right and I was wrong. I criticized Baude in harsh terms. I was mistaken, and I apologize. In candor, I didn't quite understand the policy of non-acquisence at the time. Indeed, Baude's op-ed brought me down the path of learning about this topic--long before anyone ever thought about a nationwide injunction.
Back to the oral argument in the birthright cases.
There is much to say about the oral argument yesterday in Trump v. CASA. For now, I stand by my prediction from Tuesday:
A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.
Justice Gorsuch asked General Sauer, point blank, "How do you suggest we reach this case on the merits expeditiously?" Gorsuch asked NJ Solicitor General Feigenbaum , "how would you get the merits of this case to us promptly." Gorsuch asked again, "I appreciate that. How do we get to the merits fast?"
I expect this case to be restored to the docket with argument in the fall. The Court could follow the timeline from Citizens United v. FEC. Recall that case was initially argued in March 2009. Malcolm Stewart (infamously) said that the government could ban books. That argument did not go over so well. The majority apparently was prepared to declare unconstitutional the campaign finance regulation. According to Jeffrey Toobin, Justice Souter and other prevailed on the Chief Justice to re-argue the case to ensure the issue was clearly presented. Roberts went along with this strategem. On the very last day of the October 2008 Term, the Court restored the case to the docket for reargument during a special September sitting:
This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441b? The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, July 24, 2009. Amicus briefs, not to exceed 4,500 words, may be filed with the Clerk and served upon counsel to the parties by 2 p.m., Friday, July 31, 2009. Reply briefs, not to exceed 3,000 words, may be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, August 19, 2009. The case is set for oral argument at 10 a.m., Wednesday, September 9, 2009.
September 9 was Justice Sotomayor's first day on the Supreme Court, and Elena Kagan's first oral argument, ever. Justice Kagan said the government could not ban books, but her explanation why did not make any sense. The case was decided on January 21, 2010, shortly before the State of the Union. And the rest is history.
I think the Court will follow a similar trajectory.
